Sea World of Florida v. Ace American Ins.

• Decision Date: 12 February 2010
• Docket Number: No. 5D08-4197.,No. 5D08-1496.,No. 5D08-1497.,No. 5D09-2497.,5D08-1496.,5D08-1497.,5D08-4197.,5D09-2497.
• Citation: 28 So.3d 158
• Parties: SEA WORLD OF FLORIDA, INC., et al., Appellants/Cross-Appellees, v. ACE AMERICAN INSURANCE COMPANIES, INC., et al., Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

28 So.3d 158

SEA WORLD OF FLORIDA, INC., et al., Appellants/Cross-Appellees, v.ACE AMERICAN INSURANCE COMPANIES, INC., et al., Appellees/Cross-Appellants.

No. 5D08-1496.

No. 5D08-1497.

No. 5D08-4197.

No. 5D09-2497.

District Court of Appeal of Florida, Fifth District.

February 12, 2010.

Jeffrey S. Weiss and Erin J. O'Leary, of Brown, Garganese, Weiss, and D'Agresta, P.A., Orlando, and Robert I. Westerfield of Bowles & Verna, LLP, Walnut Creek, CA, for Appellants/Cross-Appellees.

Michael J. Roper and Dale A. Scott, of Bell, Roper & Kohlmyer, P.A., Orlando, and John S. Vishneski, Chicago, IL, for Appellee/Cross-Appellants.

EVANDER, J.

Appellants(hereinafter collectively referred to as "Sea World") were sued by Robert DuFault for personal injuries suffered by him while performing certain repair work on Sea World's premises.Sea World ultimately settled DuFault's claim and then brought an action for contractual indemnity against appellees(hereinafter collectively referred to as "Hobart").The jury determined that Hobart was solely responsible for DuFault's injuries and that Sea World was entitled to be reimbursed by Hobart for the settlement payment made to DuFault ($85,000), as well as the amount expended for attorney's fees and costs in defending against DuFault's claim ($181,000).However, the trial court set aside the jury's award for attorney's fees because Sea World did not present independent expert testimony establishing the reasonableness of the fees expended in defending against DuFault's claim.We hold that Sea World was not required to present independent expert testimony on this issue and, accordingly, reverse and remand with instructions for the trial court to reinstate the jury's verdict.¹

Sea World and Hobart had entered into a written agreement whereby Hobart agreed to perform certain commercial kitchen repairs for Sea World.Pursuant to the contract, Hobart further agreed to indemnify and hold Sea World harmless from any and all "loss" to the extent caused or incurred as the result of the negligence or other actionable fault of Hobart's employees.²Loss was defined in the contract to mean:

[A]ny and all loss, damage, liability, or expenses, whether incurred as a judgment, settlement, penalty, fine or otherwise (including attorney's fees and the costs of defense) in connection with any action, proceeding, or claim, whether real or spurious, for injury, including death to any person or persons or damage to, loss of the use of, or loss of the property of any person, firm, or corporation, including the parties hereto, arising or resulting out of the performance of services required pursuant to this Contract.

(Emphasis added).Here, the jury's determination that Sea World suffered a loss due to the negligence of a Hobart employee during the performance of the contract was supported by substantial competent evidence.

In support of its damage claim, Sea World presented the testimony of Mark Thompson, the attorney having primary responsibility for representing Sea World in the lawsuit filed by DuFault.Thompson detailed the work his firm performed on behalf of Sea World, the reasons for the work, and the basis for the fees.Thompson's firm's legal bills and invoices were also introduced into evidence.However, Sea World failed to call an independent attorney's fees expert to "corroborate" the reasonableness of Thompson's firm's fees.Relying on Seitlin & Co. v. Phoenix Ins. Co.,650 So.2d 624(Fla. 3d DCA1994), the trial court found this lack of evidence to be fatal to Sea World's claim for attorney's fees incurred in the underlying DuFault lawsuit.

In Seitlin,Phoenix Insurance Company had wrongfully refused to defend its insured, Brad Schandler, on a negligence claim brought against Schandler by Howard Silber.Schandler hired counsel and ultimately, after a jury trial, resolved Silber's claim.Schandler then brought an action against Phoenix Insurance Company seeking, inter alia, to recover the attorney's fees he had incurred in defending the action brought by Silber.

At trial, Schandler testified that he had incurred approximately $29,000 in attorney's fees in the prior case, and introduced into evidence the invoices reflecting this amount.The jury returned a zero verdict and Schandler moved for a new trial, contending that the verdict was contrary to the manifest weight of the evidence.In response, Phoenix Insurance Company argued that Schandler's attorney's fees case was fatally deficient because Schandler failed to call an attorney's fees expert at trial.

The trial court denied Schandler's motion for new trial and the Third District Court of Appeal affirmed on this issue.In doing so, the court concluded that "expert testimony was necessary to support the claim for attorney's fees."Id. at 627.It is not clear from the opinion whether the expert testimony requirement imposed by the Seitlin court would have been satisfied by testimony from Schandler's prior counsel, or if the Third District Court of Appeal would have also required testimony from an independent attorney's fees expert.

In the instant case, Sea World prevailed on its contractual indemnity claim against Hobart.Pursuant to the terms of the contract, Sea World was entitled to recover the reasonable attorney's fees incurred in the defense of DuFault's lawsuit.Camp, Dresser & McKee, Inc. v. Paul N. Howard Co.,853 So.2d 1072(Fla. 5th DCA2003).Thus, this case involves a situation where Sea World was seeking to recover previously incurred attorney's fees as an element of damages in a breach of contract action.As such, Sea World's burden of proof was that which is required in a breach of contract action — the presentation of evidence "sufficient to satisfy the mind of a prudent, impartial person" as to the amount of awardable damages.Schimpf v. Reger,691 So.2d 579, 580(Fla. 2d DCA1997).That is, there must be a reasonable basis in the evidence for the amount awarded.Id.Here, Thompson's testimony satisfied those requirements.Although Sea World was entitled to call an independent expert witness to corroborate the reasonableness of Thompson's fees, it was not required to do so.

We also note that if a claimant is seeking to recover, as damages, fees paid to a physician, engineer, architect, or other professional, there is no requirement to present "corroborating" testimony from an independent expert.Indeed, our supreme court has held that there is no requirement for expert testimony (independent or otherwise) to support an award of physician's fees where the doctor's bill and the plaintiff's testimony made it a question for the jury to determine whether the...