USAA Cas. Ins. Co. v. Prime Care Chiropractic Centers, P.A.

• Decision Date: 25 July 2012
• Docket Number: No. 2D10–6217.,2D10–6217.
• Citation: 93 So.3d 345
• Parties: USAA CASUALTY INSURANCE COMPANY, Appellant, v. PRIME CARE CHIROPRACTIC CENTERS, P.A. a/a/o Darlene Woodard, Appellee.
• Court: Florida District Court of Appeals

93 So.3d 345

USAA CASUALTY INSURANCE COMPANY, Appellant,

v.PRIME CARE CHIROPRACTIC CENTERS, P.A. a/a/o Darlene Woodard, Appellee.

No. 2D10–6217.

District Court of Appeal of Florida, Second District.

May 9, 2012.

Rehearing Denied July 25, 2012.

Douglas H. Stein of Seipp & Flick, LLP, Miami, for Appellant.

Kevin B. Weiss of Weiss Legal Group, P.A., Maitland, for Appellee.

CRENSHAW, Judge.

USAA Casualty Insurance Company (USAA) appeals a county court final judgment for attorney's fees and costs entered in favor of Prime Care Chiropractic Centers, P.A. a/a/o Darlene Woodard (Prime Care) that applied a contingency risk multiplier. In so doing, the county court certified a question of great public importance as to whether expert testimony alone could constitute sufficient proof to apply a contingency fee multiplier. Because the county court abused its discretion by awarding a multiplier that was not supported by competent, substantial evidence, we do not reach the certified question.

In December 2008, Prime Care filed a complaint alleging that USAA failed to pay the full amount owed for medical services rendered to Prime Care's assignor, Ms. Woodard, a patient insured under personal injury protection (PIP) coverage issued by USAA. USAA initially disputed the allegations but eventually confessed judgment by paying the claim in full, plus interest, in May 2010. Prime Care thereafter moved for attorney's fees and costs under section 627.428, Florida Statutes (2008), seeking a multiplier pursuant to Massie v. Progressive Express Insurance Co., 25 So.3d 584 (Fla. 1st DCA 2009), review dismissed,32 So.3d 60 (Fla.2010).

At the hearing on Prime Care's motion for attorney's fees, Prime Care presented the testimony of its corporate representative, John R. Tucker III, its attorney, Kimberly A. Driggers, and an expert witness, attorney Kevin Weiss. Mr. Tucker testified that he contacted three law firms in Polk County about his claim, but none of the firms would handle his case. He then contacted the Florida Chiropractic Association, who in turn referred him to Ms. Driggers, an attorney based in Tallahassee who ultimately took the case on Prime Care's behalf. The county court found that Mr. Tucker's testimony did not establish that Prime Care had any difficulty finding a lawyer who would accept its case without the possibility of a multiplier. Rather, Prime Care's initial problem retaining counsel with the original three law firms stemmed from a general unwillingness to take the case, not a specific refusal to take the case without the possibility of a multiplier. Nonetheless, the county court decided that a multiplier of 2.0 was necessary in accordance with Massie based on Mr. Weiss's expert testimony. The county court noted that an opposite result would have occurred if the court applied the Fifth District's holding in Progressive Express Insurance Co. v. Schultz, 948 So.2d 1027 (Fla. 5th DCA), review denied,966 So.2d 968 (Fla.2007).

USAA believed that Massie and Schultz conflicted and sought to certify the question as to the sufficiency of the evidence required to obtain a multiplier and to establish that a plaintiff would have difficulty finding competent counsel.¹ The county court agreed that a conflict existed and certified the following question as one of great public importance:

IN AN ACTION INVOLVING A CLAIM FOR A STATUTORILY DIRECTED ATTORNEY FEE UNDER ... SECTION 627.428, CAN EXPERT TESTIMONY ALONE CONSTITUTE SUFFICIENT PROOF UNDER STANDARD GUARANTY INSURANCE CO. v. QUANSTROM, 555 So.2d 828 (Fla.1990), ON THE ISSUE OF WHETHER THE RELEVANT MARKET REQUIRES A CONTINGENCY FEE MULTIPLIER TO OBTAIN COMPETENT COUNSEL?

This court accepted jurisdiction of the appeal, and thus we are able to “decide all issues that would have been subject to appeal if the appeal had been taken to the circuit court.” Fla. R.App. P. 9.160(f)(1); State v. Muldowny, 871 So.2d 911, 913 (Fla. 5th DCA 2004).

“[T]he standard of review with respect to the application of a multiplier is one of abuse of discretion.” Holiday v. Nationwide Mut. Fire Ins., 864 So.2d 1215, 1218 (Fla. 5th DCA 2004); see also Discovery Experimental & Dev., Inc. v. Dep't of Health, 824 So.2d 195, 196 (Fla. 2d DCA 2002) (“Appellate courts apply an abuse of discretion standard in reviewing a trial court's determination on the entitlement of attorney's fees.”). The application of a contingency risk multiplier must be reversed if it is...