July 12th, 2018
Insureds Re-Joyce, Multipliers Are Alive and Well: the Florida Supreme Court Rejects the Rare and Exceptional Circumstances Requirement
By, Katherine L. Sloan, Esq.
In certain circumstances, Florida courts impose contingency fee multipliers to increase an attorneys’ fee award. This multiplier can increase the fees awarded from 1.5% to 2.5% and the case law dictates specific factors that must be considered before imposition of the same. The recent decision in Joyce v. Federated National Ins. Co., 228 So. 3d 1122 (Fla. 2017), rejected the application of a rare and exceptional circumstances requirement to contingency fee multipliers.
Generally, in American law, each party is responsible for his or her own attorneys’ fees, regardless of the prevailing party in the lawsuit. See Johnson v. Omega Ins. Co., 200 So. 3d 1207, 1214 (Fla. 2016). However, an exception to this rule arises when an award of attorneys’ fees is statutorily imposed or the parties otherwise agree to the imposition of attorneys’ fees. Id.
As a matter of public policy—primarily to discourage carriers from denying valid claims—the State of Florida imposed a fee shifting statute, which authorizes an insured to collect reasonable attorneys’ fees from a carrier upon the rendering of a judgment or decree in its favor. § 627.428, Fla. Stat. The statute provides in relevant part:
Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.
Id. Notably, this fee-shifting benefit does not extend to the carrier in the event of a judgment or decree in its favor.
The Joyces, an elderly couple, sustained water damage to their home and subsequently submitted a claim to their insurer, Federated National Insurance Company (“Federated”). Joyce, 228 So. 3d at 1123. Federated denied the claim on the basis of material misrepresentations made by the Joyces in their application. The Joyces, due to financial limitations, were forced to hire an attorney on a contingency fee arrangement. Id. After several months embroiled in litigation, Federated agreed to settle the claim. Id. at 1134. In this settlement, Federated stipulated to the Joyces’ entitlement to reasonable attorneys’ fees. Id. at 1124.
Thereafter, the trial court thoroughly examined the timesheets prepared by the Joyces’ attorneys and heard testimony from both the insureds’ fee expert and the fee expert for Federated. Id. After the hearing, the trial court first calculated the “lodestar” amount. Id. In Florida, the “lodestar” is defined as the number of hours reasonably incurred by the attorneys of record, multiplied by a court-determined reasonable hourly rate. Id. In this determination, the court considers factors set forth in the Florida Rules of Professional Conduct 4-1.5 such as, the fee customarily charged in the locality, the amount at issue in the case, the experience of the attorney, and the time and labor required pursuant to the novelty and difficulty of the questions involved. Id. The trial court then applied a multiplier of 2.0 to the lodestar amount after consideration of the factors set forth in Standard Guaranty Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990) and Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). Joyce, 228 So. 3d at 1124.
Under Rowe, the Florida Supreme Court determined that a trial court could adjust the lodestar and apply a multiplier between 1.5 and 3.0 based on, among other factors, the likelihood of success at the case’s outset. 472 So. 2d 1145. Specifically, Rowe outlined the following criteria for the imposition of a multiplier:
(1) The time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for similar legal services.
(4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the client.
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contingent.
Id. at 1150, n. 5.
The subsequent Quanstrom decision modified the analysis for contingency fee multipliers holding that a trial court must consider whether to apply a multiplier, but is not required to do so. 555 So.2d at 831. Pursuant to Quantrom, a trial court should consider three factors in determining whether to impose a contingency fee multiplier: 1) whether the relevant market requires a contingency fee multiplier to obtain competent counsel; (2) whether the attorney was able to mitigate the risk of nonpayment in any way; and (3) whether any of the factors set forth in Rowe are applicable, especially, the amount involved, the results obtained, and the type of fee arrangement between the attorney and his or her client. Id. at 834. Finally, the Court detailed that evidence must be presented to justify the utilization of the multiplier. Id.
In Joyce, the trial court found that first factor—the relevant market—supported a multiplier. 228 So.3d at 1136. The insureds’ attorney and fee expert testified that they were unaware of any other attorneys in St. Johns County who specialized in representing first-party plaintiffs against insurers. Id. at 1135. The trial court concluded, “there are few or no other attorneys who undertake this work who have offices in the St. Augustine area.” Id. Without the possibility of a contingency fee multiplier, the insureds would not have found another competent attorney who would have agreed to take the case. Id. The trial court also determined that the case was complex, and therefore the third Quanstrom factor supported the imposition of a multiplier. Id. at 1134.
The Fifth District Court of Appeal in Joyce reversed the trial court’s decision construing the language of Quanstrom to indicate that a multiplier is only to be utilized in rare and extraordinary circumstances. 228 So. 3d at 1128-29. Notably, this decision aligns with the United States Supreme Court’s view of multipliers. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010). In fact, the Fifth District relied upon this precedent in support of its reversal of the trial court’s decision in Joyce. 228 So. 3d at 1131.
The Florida Supreme Court, however, rejected the rare and exceptional circumstances argument set forth by Federated, found that a multiplier of 2.0 was appropriate in the Joyce case, and determined that the trial court came to such a conclusion based on competent and substantial evidence. Id. at 1136. The Court specifically noted that no such rare and exceptional circumstances requirement exists under Rowe, Quanstrom, or in Bell v. U.S.B. Acquisition Co., Inc., 734 So. 2d 403 (Fla. 1999) (holding that a multiplier could be applied to court awarded fees based upon a contractual provision). Joyce, 228 So. 3d at 1133.
Additionally, the Court determined that the Fifth District’s reliance on Perdue missed the point that Perdue addressed lodestar enhancements in contexts other than contingency fee multipliers, and was therefore inapplicable to the instant case. Joyce, 228 So. 3d at 1131. Moreover, the Florida Supreme Court expressed its rejection of the United States Supreme Court’s rationale for rejecting contingency fee multipliers. Id. at 1132. Justice Scalia, writing for the majority in City of Burlington v. Dague, 112 S.Ct. 2638 (1992), couched his disapproval of contingency fee multipliers by reasoning that the multipliers incentivize nonmeritorious claims. The Florida Supreme Court determined that, to the contrary, a contingency fee multiplier provides a trial court with the necessary flexibility to ensure that lawyers that take on difficult cases under a contingency fee are adequately compensated, thereby providing plaintiffs with access to competent counsel. Joyce, 228 So. 3d at 1132.
The Joyce decision reaffirmed Florida’s continued commitment to allow the use of contingency fee multipliers where appropriate. Accordingly, in the wake of Hurricane Irma and the massive influx of coverage disputes resulting from the same, a carrier should appreciate its exposure to a potential contingency fee multiplier when analyzing its risk. Navigating an insurance claim can be a confusing and arduous process. It is always best to consult with an attorney that specializes in insurance coverage disputes to assist in the process.