LOUISE MASSIE, PETITIONER,
v.
PROGRESSIVE EXPRESS INSURANCE COMPANY, RESPONDENT
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The appellate court reviewed whether a contingency fee multiplier was improperly denied in a personal injury protection case. The court found that the lower appellate court departed from the essential requirements of law by failing to apply established precedent regarding the necessity of expert testimony for multiplier awards.
Yes, the attorney is entitled to a contingency fee multiplier. The lower appellate court departed from the essential requirements of law by failing to apply the correct legal principle established by prior case law.
[1] A departure from the essential requirements of law occurs when a lower court fails to apply a correct principle of law to the admitted facts.
[2] Expert testimony that a party would have difficulty securing counsel without the opportunity for a contingency fee multiplier supports the imposition of such a multiplier…
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Join FLexlaw to unlock all legal intelligence“In this second-tier certiorari proceeding our review is limited to whether a “departure from the essential requirements of law” occurred, as a violation of procedural due process is not an issue.”
Establishes the limited scope of review for second-tier certiorari.
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Join FLexlaw to unlock all legal intelligenceThe trial court awarded attorney's fees with a contingency fee multiplier. On direct appeal, the circuit court reversed this award, relying on a prece…
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In this second-tier certiorari proceeding our review is limited to whether a “departure from the essential requirements of law” occurred, as a violation of procedural due process is not an issue. See Kaklamanos v. Allstate Ins. Co., 796 So.2d 555 (Fla. 1st DCA 2001). We conclude such a departure occurred.
The sole issue presented is whether Petitioner’s attorney is entitled to a contingency fee multiplier on her attorney’s fees award in this personal injury protection (“PIP”) action. The Circuit Court on direct appeal reviewed and reversed the trial judge’s order awarding a multiplier because Petitioner did not testify that she had difficulty securing counsel to represent her in the cause without a multiplier under Sun Bank of Ocala v. Ford, 564 So.2d 1078 (Fla.1990). To support her ruling, the circuit judge relied upon Progressive Express Insurance Co. v. Schultz, 948 So.2d 1027 (Fla. 5th DCA 2007), as precedent. However, this court concluded in McCarthy Brothers Co. v. Tilbury Construction Inc., 849 So.2d 7, 10 (Fla. 1st DCA 2003), that expert testimony that a party would have difficulty securing counsel without the opportunity for a multiplier supports a multiplier’s imposition. Here, Petitioner presented such testimony, and the Circuit Court departed from the essential requirements of law by failing to apply a principle of law previously enunciated by this Court rather than that of our sister Fifth District Court of Appeal. See Stanfill v. State, 384 So.2d 141, 143 (Fla.1980); see Kaklamanos, 796 So.2d at 557, (stating a “departure from the essential requirements of law” occurs when a lower court fails to fulfill its constitutional duty to apply a correct principle of law to the admitted facts).
Accordingly, we grant the petition for writ of certiorari and quash the decision under review with directions that the Circuit Court affirm the trial court’s award of a contingency fee multiplier and remand to the trial court for further proceedings consistent with this opinion.
ROBERTS and CLARK, JJ., concur.
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Joyce v. Federated Nat'l Ins. Co., 228 So. 3d 1122 (Fla. 2017)…likely not have found another competent attorney in that area who would have agreed to take the case “without the possibility of a contingency fee multiplier.” Likewise, the trial court explained, citing Massie v. Progressive Express Insurance Co., 25 So. 3d 584, 585 (Fla. 1st DCA 2009), that use of a multiplier in this case is supported by “[ejxpert testimony that a party would have difficulty securing counsel without the opportunity for a multiplier.” [*1125] As to the second Quanstrom factor, the trial c…
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USAA Cas. Ins. Co. v. Prime Care Chiropractic Ctrs., P.A., 93 So. 3d 345 (Fla. 2d DCA 2012)…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, a…
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Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Stanfill v. State, 384 So. 2d 141 (Fla. 1980)
- SUN Bank OF Ocala v. Jacques Ford, 564 So. 2d 1078 (Fla. 1990)
- Progressive Express Ins. Co. v. Schultz, 948 So. 2d 1027 (Fla. 5th DCA 2007)
- McCARTHY Bros. Co. v. Tilbury Constr., Inc., 849 So. 2d 7 (Fla. 1st DCA 2003)
- Dino Kaklamanos and Keely Kaklamanos v. Allstate Ins. Co., 796 So. 2d 555 (Fla. 1st DCA 2001)