 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Mercury Casualty Co. v. Rural Metro Ambulance Inc.8/19/2005
Mercury Casualty Company seeks certiorari review of a decision rendered by the circuit court of Seminole County, Florida, acting in its appellate capacity. Mercury contends that the circuit court departed from the essential requirements of law by granting Rural Metro Ambulance, Inc.'s request for appellate attorney's fees. We agree and grant the petition.
At the time Yvanne Belanston was involved in an automobile accident, she had an insurance policy issued by Mercury, which provided her with personal injury protection (PIP) coverage. Rural Metro Ambulance provided services to Belanston and took an assignment of her PIP benefits. Mercury refused to pay the bill, alleging that Belanston made certain misrepresentations on her application for insurance. Rural Metro then brought a PIP suit in county court. Ultimately, Mercury agreed to pay the bill and further agreed that Rural Metro's counsel was entitled to an award of reasonable attorney's fees. Following a fee hearing, the county court entered an attorney's fees judgment in favor of Rural Metro's counsel, enhanced by a 2.5 contingency multiplier. The county court also awarded Rural Metro's counsel an additional 17.3 hours of fees "for litigating entitlement to a multiplier."
Mercury appealed the fee judgment to the circuit court. Rural Metro responded and filed a motion for appellate attorney's fees. After due consideration, the circuit court affirmed the county court attorney's fee order in all respects, except as to the time spent litigating the appropriateness of a multiplier. The circuit court also granted Rural Metro's motion for appellate attorney's fees. In doing so, the circuit court concluded that Rural Metro was entitled to appellate attorney's fees as the "prevailing party" and because Mercury "did not serve an objection to [Rural Metro's] Motion for Appellate Attorney's Fees within 10 days as required by Fla. R. App. P. 3.800(a) . . . ." Mercury seeks certiorari review of that order.
The circuit court was correct that Rural Metro was not entitled to an award of attorney's fees for the time spent litigating the necessity of a multiplier. In Allstate Indemnity Company v. Hicks, 880 So. 2d 772 (Fla. 5th DCA 2004), this Court held that the time spent litigating the appropriateness of a fee multiplier goes to the amount of, and not entitlement to, attorney's fees, and, therefore, is not recoverable under section 627.428, Florida Statutes (2003). See also Progressive Express Ins. Co. v. Physician's Injury Care Ctr., Inc., 30 Fla. L. Weekly D1356 (Fla. 5th DCA May 27, 2005); State Farm Mut. Auto Ins. Co. v. Trevino, 904 So. 2d 495 (Fla. 2d DCA 2005).
With respect to the issue of Rural Metro's appellate attorney's fees, we begin our analysis with the general rule that a party is entitled to appellate attorney's fees only when an independent basis for an attorney's fees award exists, such as a statutory or contractual basis for the claim. Kittel v. Kittel, 210 So. 2d 1 (Fla. 1967); Israel v. Lee, 470 So. 2d 861, 862 (Fla. 2d DCA 1985). Here, Rural Metro had no independent statutory or contractual basis for a claim of appellate attorney's fees since the appellate litigation dealt only with the amount of such fees and not Rural Metro's entitlement to fees. State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830 (Fla. 1993). Nonetheless, the circuit court awarded Rural Metro's appellate fees because the court concluded that Mercury failed to timely object to Rural Metro's fee motion, thereby, waiving any objection thereto.
The essence of Rural Metro's "waiver" argument is that although appellate attorney's fees were not awardable under section 627.428, it was entitled to appellate fees because Mercury
Page 1 2 Florida Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|