Back on November 7 of last year (2017), I wrote about an important opinion in the world of property insurance litigation, Joyce v. Federated National Insurance Company,1 where the Florida Supreme Court reaffirmed that you could still obtain a contingency-fee multiplier where justified under Quanstrom and in so doing reversed the Fifth District Court of Appeal finding that such a multiplier should be limited to “rare” and “exceptional” circumstances. Tom Elligett and Amy Farrior represented the Joyces in this landmark case.
Just last month, the Second District Court of Appeal made clear that it is extremely important to ensure that applying such a multiplier is supported by competent, substantial evidence in Citizens Property Insurance Corp. v. Anderson.2 Additionally, Anderson found it vital that the trial court include specific findings supporting the application of a multiplier.
Meghan Anderson, (“Anderson”) suffered a sinkhole loss at her home, and Citizens Property Insurance Corporation (“Citizens”) failed to pay her the insurance proceeds necessary to repair the foundation and stabilize the soils, or to repair above-ground damages to the home. Anderson filed suit and eventually prevailed after a jury trial, and shortly thereafter moved the trial court for an award of attorney’s fees and taxable costs. After an Attorney fee hearing where there was no court reporter, the court awarded the Plaintiff reasonable attorney’s fees that included a contingency-fee multiplier.
Citizens then appealed. The Second District Court of Appeal reversed, finding that under the facts, there was nothing to indicate that the trial court made oral findings to support the fee award.3 The appellate court acknowledged there may be other circumstances that may render a different result:
“We acknowledge that a trial court can make oral findings in support of a fee award. Yet in this case there is simply nothing to indicate that the trial court made oral findings on the issue.”4
The other issue was that the order was not only devoid of any specific findings to support the application of the multiplier, there was not a transcript of the hearing.
The Second District went on to clarify that they were not straying from the Supreme Court’s opinion in Joyce, and explained that reversal of the trial court did not mean that Anderson would not ultimately be entitled to an award containing a contingency fee multiplier. Rather, the appellate court explained that their reversal here was simply based upon the fact that the panel could not glean from the record below whether specific findings were made to justify the multiplier.
I had the opportunity to hear from the Plaintiff’s attorney in this case who mentioned that he offered to draft the order in an effort to avoid this situation, but that the trial court declined his offer.
So, what are some ways those of us who represent policyholders can avoid this situation? These are just suggestions, but you might offer to draft or prepare the order for the court so you can ensure that you have competent, substantial evidence and specific findings supporting the application of your multiplier in the order. (Although like the Plaintiff’s attorney here, you run the risk that the judge could tell you “no”). I would also highly recommend having a Court Reporter present at your Attorney Fee Evidentiary hearing, so that in the event the order awarding your fee is deficient, you still have record evidence of “competent, substantial evidence” from your attorney fee expert(s) and the judge’s “specific findings” as he or she makes oral findings during the hearing.
If you run into a situation where you get to your evidentiary hearing and it appears both sides forgot to hire a court reporter, or for whatever other reason there is not one present, it may be worth it to see if there is one available on an emergency basis, or one already at the courthouse that may be able to fill in, as having transcripts of these types of hearings can make or break your case—as Anderson has shown us.
Last, if a judge is ready to make findings at the hearing, but does not seem clear on why he or she is ruling it may be a good idea to ask your judge for clarification on certain issues, and to even ask what the basis is for each of his or her rulings are as they are being made. That way, if the specific findings do not make their way into the written order, you at least have record evidence in the transcript of how the judge arrived at his or her ultimate findings in support of your award.
1 Joyce v. Federated National Ins. Co., 228 So. 3d 1122 (Fla. 2017).
2 Citizens Prop. Ins. Corp. v. Anderson, 2D16-616, 2018 WL 844568, at *2 (Fla. 2d DCA Feb. 14, 2018).
3 See Id. at *4.
4 Id. at *5.