Court acts on fee multipliers

first_imgCourt acts on fee multipliers Court acts on fee multipliers November 15, 2003 Regular Newscenter_img Contingency fee multipliers cannot be used when awarding reasonable attorneys’ fees under F.S. §768.79, the Florida Supreme Court said in an October 2 opinion.In case no. SC02-428, the court reviewed Allstate Insurance Co. v. Sarkis, 809 So. 2d 6 (Fla. 5th DCA 2001), a case in which the petitioner was involved in an automobile accident in which she suffered damages. The plaintiff offered, under F.S. §768.79, which considers reasonableness of attorneys’ fees after an offer of judgment has been made, to accept $10,000 under her uninsured motorist coverage. The offer was rejected; the case went to trial; and the plaintiff was ultimately awarded $87,700.Since the verdict exceeded the offer by more than 25 percent, under the statute the trial court awarded attorneys’ fees of $58,450. After noting that Allstate had a regular practice of contesting such claims and other factors in court, the judge then applied a 1.5 multiplier factor.In its 6-1 opinion, the court agreed with an en banc ruling of the Fifth District Court of Appeal that the multiplier was not allowed under the statute, or under Rule 1.442, Florida Rules of Civil Procedure, which explains attorneys’ fees are sanctions after an offer of judgment has been refused.In his concurring opinion, Justice Charles T. Wells made the argument that: “Counsel agreed to the representation of the client and entered into a contract with the client for the representation prior to the offer of judgment.. . [hence] justifying a fee multiplier, which is whether a fee enhancement is required to obtain competent counsel, cannot be met because when an offer of judgment is made and rejected, counsel has already been obtained.”Justice Wells continued that Rule 1.442 states that attorneys’ fees are sanctions that can only be applied after the date the offer of judgment was served upon the rejecting party, not from the original date the counsel agreed to undertake the representation.Chief Justice Harry Lee Anstead and Justices Fred Lewis, Peggy Quince, and Kenneth Bell concurred in the per curiam opinion, and Bell also concurred with Wells’ concurring opinion.In dissenting, Justice Barbara Pariente stated that the language of F.S. §768.79 clearly places multiplier fees within the category of “all relevant criteria” considered when calculating award of attorneys’ fees, arguing that multiplier fees supported the underlying policy of the statute, to promote settlements.“The use of the contingency risk factor.. . serves the goals of both ensuring access to the courts by potential litigants and encouraging settlement of claims,” she said.Justice Pariente also argued that F.S. §768.79 did allow for using a multiplier.“The court has adopted a forced, rather than a strict, construction of an unambiguous statute in rejecting the contingent nature of the representation as one of the ‘relevant criteria’ in determining the reasonableness of a fee award under F.S. §768.79 (7)(b). Strict construction in favor of a party receiving a sanction is required only when the statutory language being construed is ambiguous. . . therefore, in my view, the majority’s act of excluding a contingency risk multiplier from consideration as a relevant criterion is an unwarranted exercise in statutory construction.”For more information on SC02-428, visit the court’s Web site, www.flcourts.org.last_img

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