SEA WORLD OF FLORIDA, INC., ET AL., APPELLANTS/CROSS-APPELLEES,
v.
ACE AMERICAN INSURANCE COMPANIES, INC., ET AL., APPELLEES/CROSS-APPELLANTS

Fla. 5th DCA | 2010-02-12
Nos. 5D08-1496, 5D08-1497, 5D08-4197, 5D09-2497
ORFINGER and LAWSON, JJ„ concur.
28 So. 3d 158 Florida District Court of Appeal, Fifth District (2010) Caution
Cited by 23 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Sea World recovered a jury verdict for contractual indemnity against Hobart for settlement payments and defense costs in an underlying personal injury lawsuit. The trial court set aside the attorney's fees award for lack of independent expert testimony, but the appellate court reversed, holding that independent expert testimony is not required when recovering previously incurred attorney's fees as damages in a breach of contract action.


Holding

Sea World was not required to present independent expert testimony to recover previously incurred attorney's fees as an element of damages in a breach of contract action. The attorney who performed the services (Mark Thompson) testified regarding the work performed, reasons for the work, and basis for fees, and his firm's legal bills and invoices were introduced into evidence, which satisfied the burden of proof required in a breach of contract action.


Headnotes

[1] A party seeking to recover previously incurred attorney's fees as an element of damages in a breach of contract action is not required to present independent expert testi…

[2] The reasonableness of attorney's fees incurred in defending a lawsuit can be established by the testimony of the attorney who performed the services and the introduction…

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Key Quotes

“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.”

Establishes the core holding that independent expert testimony is discretionary, not mandatory, in breach of contract actions seeking recovery of previously incurred attorney's fees.

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Facts & Procedural History

Sea World and Hobart entered into a contract whereby Hobart agreed to perform commercial kitchen repairs and indemnify Sea World from losses caused by…

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Opinion of the Court
EVANDER, J.

EVANDER, J.

Appellants (hereinafter collectively referred to as “Sea World”) were sued by Robert DuFault for personal injuries suf*159fered 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.2 Loss 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 DCA 1994), 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 Sil-ber’s claim. Schandler then brought an action against Phoenix Insurance Company seeking, inter alia, to recover the attor-*160nejfs 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 DCA 2003). 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 DCA 1997). 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 plaintiffs testimony made it a question for the jury to determine whether the bills represented reasonable and necessary medical expenses. Garrett v. Morris, Kirschman & Co., Inc., 336 So.2d 566, 571 (Fla.1976); see also East West Karate Ass’n. Inc. v. Riquelme, 638 So.2d 604 (Fla. 4th DCA 1994) (although plaintiff had burden at trial to prove reasonableness and necessity of medical expenses, expert testimony not required). We see no reason to impose a higher standard of proof simply because the professional fees sought to be recovered are those of an attorney. To the extent our decision may conflict with Seit-lin, we certify conflict.

We recognize that where a party seeks to have the opposing party in a lawsuit pay for attorney’s fees incurred in that same action, the general rule in Florida is that independent expert testimony is required. See, e.g., Crittenden Orange Blossom Fruit v. Stone, 514 So.2d 351, 352-53 (Fla.1987); Brake v. Murphy, 736 So.2d 745, 747 (Fla. 3d DCA 1999); Mark *161 ham v. Markham, 485 So.2d 1299, 1301 n. 8 (Fla. 5th DCA 1986); Mullane v. Lorenz, 372 So.2d 168 (Fla. 4th DCA 1979). However, these cases are distinguishable because they do not involve a situation where a party is seeking to recover previously incurred attorney’s fees as an element of damages in a breach of contract action. Rather, those cases involve the application of an exception to the general rule that a party to a civil action should be responsible for the payment of his or her own attorney’s fees. Dade County v. Pena, 664 So.2d 959, 960 (Fla.1995) (Florida follows “American Rule” that attorney’s fees may only be awarded by court pursuant to entitling statute or parties’ agreement). In these type cases, the judiciary has imposed the additional requirement of corroborative testimony from independent experts because:

Implicit in the rule that an attorney’s fee must always be proved through the presentation of testimony is that such a requirement is necessary to maintain the image of lawyers in the eyes of the public.

Lafferty v. Lafferty, 413 So.2d 170, 171 (Fla. 2d DCA 1982).

Although not necessary to the resolution of the instant case, we join the Fourth District Court of Appeal in questioning the continued need for this judicially-created rule. Island Hoppers Ltd. v. Keith, 820 So.2d 967, 977 (Fla. 4th DCA 2002), rev. on other grounds, Sarkis v. Allstate, 863 So.2d 210 (Fla.2003) (Gross, J., concurring specially) (“Though Florida Courts have long required the corroborative testimony of an expert ‘fees witness,’ we question whether the rule is always the best, or more judicious practice.”)3 It is speculation as to whether the application of this rule has helped to “maintain the image of lawyers in the eyes of the public.” It is not speculation that claimants expend time and money to retain fee experts, even in those cases where their testimony is likely to be of little or no assistance. As observed by some commentators, expert testimony in fees cases “is often nothing more than a rubber stamp of the billing and time records submitted to the court by the party seeking fees,-” Robert J. Hauser, Raymond E. Kramer III, & Patricia A. Leonard, Is Expert Testimony Really Needed in Attorney’s Fees Litigation? Island Hoppers’ Call for Change and Other Ways to Reduce the Burdens of Fees Hearings, Fla. B. J., Jan. 2003, at 38, 40.

AFFIRMED, in part; REVERSED, in part; REMANDED.

ORFINGER and LAWSON, JJ„ concur.


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Citator

Cited By (13 total)

  • Robin Roshkind, P.A. v. MacHiela, 45 So. 3d 480 (Fla. 4th DCA 2010)
    …scharge the attorney, the attorney withdrew. Generally, “where a party seeks to have the opposing party in a lawsuit pay for attorney’s fees incurred ... independent expert testimony is required.” Sea World of Fla., Inc. v. Ace Am. Ins. Cos., Inc., 28 So. 3d 158, 160 (Fla. 5th DCA 2010), review granted, 36 So. 3d 83, 2010 WL 2383319 (Fla.2010) (expert witness testimony is unnecessary in litigation over fees incurred to defend breach of contract action). And, case law throughout this state has adhered to the…
  • Sourcetrack, LLC v. Ariba, Inc., 34 So. 3d 766 (Fla. 2d DCA 2010)
    …urrently some debate about whether trial judges should be given greater latitude to award attorney’s fees without always receiving expert testimony from attorneys uninvolved in the case. See, e.g., Sea World of Fla., Inc. v. Ace Am. Ins. Cos., Inc., 28 So. 3d 158, 159 (Fla. 5th DCA 2010); In re Amendments to Fla. Rules of Civil Procedure, 966 So. 2d 943, 944 (Fla.2007). This court, however, continues to require such testimony. See Snow v. Harlan Bakeries, Inc., 932 So. 2d 411, 412 (Fla. 2d DCA 2006) (reversi…
  • …ony of an expert ‘fees witness,’ we question whether the rule is always the best, or most judicious, practice.”), disapproved of on other grounds by Sarkis v. Allstate, 863 So. 2d 210 (Fla. 2003) ; Sea World of Fla., Inc. v. Ace Am. Ins. Cos., Inc., 28 So. 3d 158, 161 (Fla. 5th DCA 2010) (joining Fourth District Court of Appeal in questioning the need for independent expert witnesses in support of fee request). That issue, however, is not before us today, as CED called an expert witness who opined as to the…

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