JOHN E. TUERK, ET AL., AND TOMAS PENA, APPELLANTS,
v.
ALLSTATE INSURANCE COMPANY, A FOREIGN INSURANCE COMPANY, APPELLEE
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Appellants Pena and Tuerk appealed the trial courts' awards of attorney's fees in their insurance disputes with Allstate, and the denial of expert witness fees. The appellate court affirmed Pena's attorney's fees award but reversed Tuerk's, finding the trial court erred in limiting fees to the contingent fee contract, and remanded both cases regarding expert witness fees for proper consideration under applicable standards.
The court affirmed the $2,000 attorney's fees award to Pena but reversed the $5,000 attorney's fees award to Tuerk, holding that the trial court erred in limiting Tuerk's fees to the contingent fee contract maximum. The court remanded both cases for proper consideration of expert witness fees under the standards established in Travieso v. Travieso and section 92.231, Florida Statutes.
[1] An insured who prevails against an insurer is entitled to recover a reasonable sum for attorney's fees.
[2] A trial court may reduce an attorney's fee award if the attorney was only partially successful in obtaining benefits for the client.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“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.”
Establishes the core holding that trial courts cannot limit attorney's fees to contingent fee contract amounts under the applicable statute.
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Join FLexlaw to unlock all legal intelligencePena and Tuerk brought separate claims against Allstate Insurance Company for automobile insurance benefits. The trial courts initially granted summar…
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PER CURIAM.
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) (newly announced rule in Rowe cannot be applied retroactively; to do so would invalidate the fee agreement and would impair vested rights). The trial court specifically stated that if Rowe did not apply it would award a higher fee.
It appears from the record that both Tuerk and Pena presented evidence to the court on the matter of expert witness fees incurred by their experts’ testifying in support of attorney’s fees; however, neither Tuerk nor Pena were awarded expert witness fees. In Tuerk’s case, the trial court summarily denied the claim for expert witness fees. In Pena’s case, the trial court did not even address the question of expert witness fees in its order. Although we recognize that a trial court has the authority to exercise its discretion in deciding whether to award expert witness fees, both courts should satisfy themselves that the standards in Travieso v. Travieso, 474 So. 2d 1184 (Fla.1985), and section 92.231, Florida Statutes (1985), have been met before denying an award of fees.
Affirmed in part, reversed in part, and remanded.
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Miami Child's. Hosp. v. Ulises Tamayo, 529 So. 2d 667 (Fla. 1988)…ney’s fee agreement was entered into prior to the effective date of Rowe and determining that that part of Rowe should not apply retroactively to restrict an attorney’s fee award. The court relied on its decisions in Tuerk v. Allstate Insurance Co., 498 So. 2d 504 (Fla. 3d DCA 1986), review denied, 506 So. 2d 1040 (Fla.1987), and Levy v. Levy, 483 So. 2d 455 (Fla.3d DCA), review denied, 492 So. 2d 1333 (Fla.1986), and remanded the cause to the trial court “with directions to enter an attorney’s fee award base…
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B & H Constr. & Supply Co., Inc. v. The Dist. Bd. OF Trs. OF Tallahassee Cmty. Coll., 542 So. 2d 382 (Fla. 1st DCA 1989)…85), Straus v. Morton F. Plant Hosp. Found., Inc., 478 So. 2d 472 (Fla. 2d DCA 1985), and section 92.321. B & H responds that pursuant to section 92.231, the trial court did not abuse discretion. Travieso, 474 So. 2d at 1186; Tuerk v. Allstate Ins., 498 So. 2d 504 (Fla. 3d DCA 1986), rev. den., 506 So. 2d 1040 (Fla.1987) (disapproved on other grounds, Miami Children’s Hosp. v. Tamayo, 529 So. 2d 667 (Fla.1988)). In Travieso, the Court held that the broad language of § 92.231 encompassed taxing costs for the…
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Ulises Tamayo v. Miami Child's. Hosp., 511 So. 2d 1091 (Fla. 3d DCA 1987)…o more than the fee set by the contingency fee agreement between the party seeking fees and his counsel, where, as here, the said attorney’s fee agreement was entered into prior to the effective date of the Rowe decision. Tuerk v. Allstate Ins. Co., 498 So. 2d 504 (Fla. 3d DCA 1986), rev. denied, 506 So. 2d 1040 (Fla.1987); Levy v. Levy, 483 So. 2d 455 (Fla. 3d DCA), rev. denied, 492 So. 2d 1333 (Fla.1986). We nonetheless certify that our decision passes upon a question of great public importance, namely, whe…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. Patient's Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985)
- Travieso v. Travieso, 474 So. 2d 1184 (Fla. 1985)
- Levy v. Levy, 483 So. 2d 455 (Fla. 3d DCA 1986)
- Pena v. Allstate Ins. Co., 463 So. 2d 1256 (Fla. 3d DCA 1985)
- Tuerk v. Allstate Ins. Co. & Comstock Ins. Co., 469 So. 2d 815 (Fla. 3d DCA 1985)