ADVANCED PHYSICAL THERAPY OF KENDALL, LLC, A/A/O SCHILLER LADOUCEUR,

v.

CAMRAC, LLC, ET AL.,

Third District Court of Appeal State of Florida

Opinion filed April 28, 2021. Not final until disposition of timely filed motion for rehearing. ________________

No. 3D20-1175 Lower Tribunal No. 19-10248 ________________

Advanced Physical Therapy of Kendall, LLC, a/a/o Schiller Ladouceur, Appellant,

vs.

Camrac, LLC, et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Alan S. Fine, Judge.

Tenenbaum Law Group, PLLC, and Jason Tenenbaum, for appellant.

McFarlane Law, and William J. McFarlane and Michael K. Mittelmark (Coral Springs), for appellees.

Before FERNANDEZ, SCALES and LOBREE, JJ.

SCALES, J.

2

In what we characterize as a first-party PIP (personal injury protection) case, governed by New York’s No-Fault Motor Vehicle Law, Appellant, the plaintiff below, Advanced Physical Therapy of Kendall, LLC, appeals an order of the trial court that limited its attorney’s fee recovery to $1,360.00. Specifically, Appellant challenges the trial court’s determinations that (i) Appellant’s proposal for settlement was not cognizable under applicable New York substantive law, and (ii) the instant case was not so novel or unique as to warrant fees in excess of the fee cap imposed by New York law. We affirm because the trial court correctly disregarded Appellant’s proposal for settlement, and did not abuse its discretion in determining the instant case was subject to New York’s fee cap.

I. Facts

Co-Appellee Camrac, LLC, a car-rental agency, rented one of its cars to Florida resident Schiller Ladouceur (“Ladouceur”) in Connecticut. While the car is owned by Camrac, it is registered to a Camrac affiliate, co-Appellee EAN Holdings, LLC. In August 2017, Ladouceur was driving the car in New York State when it was involved in an accident. Ladouceur was injured in the accident and was treated for his injuries by Appellant in Florida. Ladouceur assigned his PIP benefits to Appellant.

3

On April³, 2019, Appellant filed suit against Appellees¹ seeking reimbursement for $27,340.34 in bills for medical services Appellant provided to Ladouceur. Appellant’s operative, single-count complaint (alleging breach of contract) sought recovery pursuant to Florida’s PIP law, specifically section 627.736 of the Florida Statutes.² In November 2019, Appellant served a single, joint proposal for settlement on Appellees seeking $10,000.00 to resolve its claim.³

Shortly after the filing of Appellant’s April 28, 2020 operative complaint, the parties settled the case and, on May¹, 2020, entered into a joint stipulation whereby: (i) the parties stipulated that New York’s No-Fault Motor Vehicle Law governed the dispute; (ii) Appellees agreed to pay Appellant $27,340.34, plus interest, in PIP benefits (an amount within New York’s no-

After the parties failed to reach an agreement on Appellant’s fee claim, Appellant filed its motion for attorney’s fees. In Appellant’s fee motion, Appellant noted that its proposal for settlement had sought $10,000, while the parties subsequently agreed to a payment of $27,340.34, plus interest, thus triggering recovery under Florida’s proposal for settlement statute (section 768.69). Appellant’s fee motion asserted that Appellant was entitled to a reasonable hourly attorney’s fee either because: (i) under Florida law, Appellant’s recovery exceeded more than twenty-five percent of the proposal for settlement; or, in the alternative, (ii) under New York law, the case was of a “novel and unique nature” requiring “extraordinary skills or services,” and therefore, an award of attorney’s fees may exceed the statutory cap of $1,360. See 11 NYCRR § 65-4.6(b) and (e).⁴

4 Administrative regulations promulgated under Article 51, New York Insurance Law, provide (i) a cap on the amount of fees a plaintiff in a PIP case may recover, and (ii) a mechanism for a plaintiff to obtain a fee award in excess of this cap. Subsection 65-4.6(b) of these motor vehicle insurance regulations provides, in pertinent part, as follows: “[T]he payment of the applicant’s attorney’s fee by the insurer shall be limited to 20 percent of the total amount of first-party benefits . . . , plus interest thereon, for each

5

After conducting a hearing on Appellant’s fee motion, the trial court entered the order on appeal that awarded Appellant $1,360 in fees. The trial court’s order, awarding the maximum allowable under the fee cap imposed by New York law, determined that the case was “typical” and that “there is no record support for it being unique or extraordinary.” In this same order, the trial court found that Florida’s proposal for settlement statute was inapplicable to the case because the parties had stipulated that the case was governed by New York law.

II. Analysis

Appellant raises two challenges to the trial court’s order that limited its attorney’s fees to $1,360. Appellant argues the trial court erred both in determining that (i) Appellant’s proposal for settlement was ineffective because Florida’s proposal for settlement law is inapplicable to the case, and (ii) the case was subject to New York’s No-Fault Motor Vehicle Law’s attorney fee cap because this case was not “of such a novel or unique nature as to require extraordinary skills or services.”

applicant with whom the respective parties have agreed and resolved disputes, subject to a maximum fee of $1,360.” Subsection 65-4.6(e) provides, in pertinent part, as follows: “[I]f . . . a court determines that the issues in dispute were of such a novel or unique nature as to require extraordinary skills or services, the . . . court may award an attorney’s fee in excess of the limitations set forth in this section.”

III. Conclusion

In this case, the trial court did not err by determining Florida’s proposal for settlement statute was inapplicable, nor did it abuse its discretion in determining that the instant PIP case was not “of such a novel or unique nature as to require extraordinary skills or services.” Affirmed.