Tuerk v. Allstate Ins. Co.
| Decision Date | 12 November 1986 |
| Docket Number | Nos. 85-2891,86-797,s. 85-2891 |
| Citation | 498 So.2d 504,11 Fla. L. Weekly 2346 |
| Parties | 11 Fla. L. Weekly 2346 John E. TUERK, et al., and Tomas Pena, Appellants, v. ALLSTATE INSURANCE COMPANY, a foreign insurance company, Appellee. |
| Court | Florida District Court of Appeals |
Dennis G. King, Miami, for appellants Tuerk and Pena.
Sanford M. Reinstein, Hialeah, for appellant Pena.
Spencer and Taylor and Dean A. Mitchell, Miami, for appellee.
Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
Tomas Pena and John E. Tuerk appeal the amount of attorney's fees awarded to them by the trial court and the trial court's denial of expert witness fees. We affirm in part and reverse in part.
These cases arose out of claims asserted by Pena and Tuerk against Allstate Insurance Company [Allstate] for recovery of automobile insurance benefits for damages sustained in separate incidents. Both courts granted summary judgment in favor of Allstate; Pena and Tuerk appealed. This court held that Pena and Tuerk were entitled to recover their damages under PIP, but not under uninsured motorist provisions. Tuerk v. Allstate Insurance Co., 469 So.2d 815 (Fla. 3d DCA 1985); Pena v. Allstate Insurance Co., 463 So.2d 1256 (Fla. 3d DCA 1985).
Both trial courts held hearings pursuant to section 627.428, Florida Statutes (1985), which requires a trial court to award an insured a reasonable sum for attorney's fees when he prevails against the insurer. Both Pena and Tuerk were awarded attorney's fees.
We affirm the award of attorney's fees to Pena. At Pena's hearing, his expert witness estimated a reasonable fee between $13,000 and $18,000. Allstate's expert witness quoted $1,200 as a reasonable fee. The trial court awarded Pena $2,000 in attorney's fees, finding that the attorney was only partially successful in obtaining benefits for his client.
We reverse and remand the award of attorney's fees to Tuerk. Tuerk's expert witness testified that $26,000 would have been a reasonable fee in this case. Allstate's expert stated that $1,000 would constitute a reasonable fee. The trial court awarded Tuerk $5,000 in attorney's fees, the maximum amount permitted under the contingent fee contract between Tuerk and his attorney. We find error in the trial court's reliance upon Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985), in limiting Tuerk's attorney's fees to the contingent fee contract. See Levy v. Levy, 483 So.2d 455, 458 (Fla. 3d DCA), rev. denied, 492 So.2d 1333 (Fla.1986) (...
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