         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                 NOT FINAL UNTIL TIME EXPIRES TO
                                                 FILE MOTION FOR REHEARING AND
                                                 DISPOSITION THEREOF IF FILED


SAWGRASS MUTUAL INSURANCE
COMPANY,

             Appellant,

 v.                                                     Case No. 5D15-3061

TERRY MONE AND DIANE MONE,

           Appellees.
________________________________/

Opinion filed September 2, 2016

Appeal from the Circuit Court
for Volusia County,
Dennis Craig, Judge.

Jack R. Reiter and Robert D. Peters,
of GrayRobinson, P.A., Miami,
for Appellant.

Mark A. Nation and Paul W. Pritchard,
of The Nation Law Firm, Longwood,
for Appellee.


PER CURIAM.

      Sawgrass Mutual Insurance Company (“Sawgrass”) appeals the final judgment

awarding attorney’s fees and costs against it and in favor of Appellees and their counsel.

Sawgrass raises two issues. First, it contends that the trial court erred by applying a

contingency risk multiplier to Appellees’ award of attorney’s fees. Second, Sawgrass

argues, and Appellees agree, that there was a lack of competent substantial evidence to
support the award of $26,918.43 in court costs regarding the services provided by two of

Appellees’ expert witnesses, Nettles & Associates and Reliable Field Services of Central

Florida, Inc. Based upon this proper concession of error, we reverse the award of these

costs from the total costs awarded in the final judgment. Concluding that the application

of the contingency risk multiplier in this case is unwarranted, we also reverse on the first

issue.

         Appellees purchased a homeowner’s insurance policy from Sawgrass for their

home in Ormond Beach, Florida. During the policy period, Appellees noticed cracks in

the interior and exterior walls of their home and filed a claim with Sawgrass under their

policy seeking recovery for the damages caused to their home by sinkhole activity. In

response, Sawgrass investigated and ultimately denied the claim, resulting in Appellees

filing suit against Sawgrass for breach of the insurance contract. Following a one-week

jury trial at which Appellees prevailed on their claim, the trial court entered final judgment

for damages in their favor and against Sawgrass.1

         Appellees thereafter moved for an award of attorney’s fees pursuant to section

627.428, Florida Statutes (2011), and for court costs. Following an evidentiary hearing,

the trial court entered the final judgment on appeal, making express findings in the

judgment as to the reasonable number of hours expended by Appellees’ counsel and the

reasonable hourly rates for their services rendered in this litigation. This “lodestar figure”

totaled $262,620. See Fla. Patient’s Comp. Fund v. Rowe, 472 So. 2d 1145, 1150–51

(Fla. 1985), modified on other grounds by Standard Guar. Ins. Co. v. Quanstrom, 555 So.



         1
        Sawgrass separately appealed the underlying final judgment of liability, which we
recently affirmed, without opinion. Sawgrass Mut. Ins. Co. v. Mone, No. 5D15-1569, 2016
WL 4159255 (Fla. 5th DCA Aug. 2, 2016).

                                              2
2d 828, 829 (Fla. 1990) (explaining lodestar process to determine reasonable attorney’s

fees). The trial court also found that the case was appropriate for the use of a contingency

risk multiplier under the guidelines set forth in Rowe and Quanstrom, and it applied a 1.5

multiplier to the lodestar amount, resulting in a total attorney’s fee award of $393,930. On

appeal, Sawgrass does not dispute Appellees’ entitlement to attorney’s fees under

section 627.428, nor does it contest the lodestar aspect of the attorney’s fee award.

Sawgrass does, however, argue that the trial court’s use of the multiplier to enhance the

award of attorney’s fees was error because Appellees did not present sufficient evidence

that a multiplier was necessary for them to obtain competent counsel.2

       The trial court’s application of a multiplier to an attorney’s fee award is reviewed

under an abuse of discretion standard of review. Holiday v. Nationwide Mut. Fire Ins.,

864 So. 2d 1215, 1218 (Fla. 5th DCA 2004) (“Once it is determined that attorney’s fees

are awardable, the standard of review with respect to the application of a multiplier is one

of abuse of discretion.” (citing United Auto Ins. Co. v. Padron, 775 So. 2d 372 (Fla. 3d

DCA 2000) (additional citation omitted))). In Federated National Insurance Co. v. Joyce,

179 So. 3d 492, 493–94 (Fla. 5th DCA 2015), review granted, SC16-103 (Fla. 2016), we

recently wrote:

              In Rowe, the Florida Supreme Court adopted the federal
              lodestar approach, which includes “a ‘strong presumption’ that
              the lodestar represents the ‘reasonable fee.’” Progressive
              Express Ins. Co. v. Schultz, 948 So. 2d 1027, 1030 (Fla. 5th
              DCA 2007) (citing Pennsylvania v. Del. Valley Citizens’
              Council for Clean Air, 478 U.S. 546, 565, 106 S. Ct. 3088, 92
              L.Ed.2d 439 (1986)). “The application of a multiplier is the

       2Sawgrass also contends that, as a matter of law, the application of a multiplier is
inherently improper when attorney’s fees are awarded pursuant to a fee-shifting statute,
such as section 627.428, especially when this statute does not expressly authorize the
use of a multiplier. Based upon our resolution of this appeal, we find it unnecessary to
address this argument.

                                             3
              exception, not the rule . . . and this presumption is overcome
              only in ‘rare’ and ‘exceptional’ circumstances.” State Farm
              Fla. Ins. Co. v. Alvarez, 175 So. 3d 352 (Fla. 3d DCA 2015)
              (citing Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 544,
              130 S. Ct. 1662, 176 L.Ed.2d 494 (2010)).

       The primary issue in this case was whether Appellees’ home was damaged by

sinkhole activity. If it was, then the claim was covered under the policy. If not, then there

was no coverage. Each party presented expert witness testimony at trial as to this issue.

Appellees’ counsel skillfully represented Appellees throughout this litigation, prevailed at

trial, and was statutorily entitled to an award of an attorney’s fee. The lodestar fee

computed to $262,620, which, under Rowe, is strongly presumed to be a reasonable

attorney’s fee. See Schultz, 948 So. 2d at 1030. Although we apply a highly deferential

standard of review of this type of an attorney’s fee award because of the trial court’s “first-

hand knowledge of the case,” “superior understanding of the litigation,” and “extensive

contact with the parties and their counsel,” Alvarez, 175 So. 3d at 355 (quoting Centex-

Rooney Const. Co. v. Martin Cty., 725 So. 2d 1255, 1259 (Fla. 4th DCA 1999)), as

appellate judges, when we review the trial court’s decision for an abuse of discretion, “we

are not required to abandon what we learned as lawyers . . . in evaluating the

reasonableness of an award.” Trumbull Ins. Co. v. Wolentarski, 2 So. 3d 1050, 1057 (Fla.

3d DCA 2009) (citing Ziontz v. Ocean Trail Unit Owners Ass’n, 663 So. 2d 1334, 1335

(Fla. 4th DCA 1993)). We find that this case is not one involving “rare” and “exceptional”

circumstances and, therefore, conclude that the strong presumption against the

application of the contingency risk multiplier has not been overcome.

       Accordingly, we reverse, in part, the attorney’s fee award and remand with

directions that the court strike from the final judgment the sum of $131,310 for attorney’s

fees awarded pursuant to the multiplier, resulting in an attorney’s fee award to Appellees’


                                              4
counsel in accordance with the aforementioned lodestar figure. We also reverse, in part,

the award of court costs and remand with directions that the trial court strike from the final

judgment the sum of $26,918.43, reflecting the amount awarded for services rendered by

Nettles & Associates and Reliable Field Services of Central Florida, Inc.

       REVERSED in part; and REMANDED, with directions.

LAMBERT, J., and LEMONIDIS, R.C., Associate Judge, concur.
COHEN, J., concurs in part and dissents in part.




                                              5
                                                                      CASE NO. 5D15-3061



COHEN, J., concurring in part and dissenting in part.

       I concur with the majority’s decision to reverse the award of total costs. I also agree

with the majority’s framing of the issue—it should be the most exceptional of cases that

merit the use of a multiplier.3 I am forced to dissent, however, because of the standard of

review in this case. As the majority notes, the trial court’s application of a multiplier to an

attorney’s fee award is reviewed for an abuse of discretion. Holiday v. Nationwide Mut.

Fire Ins., 864 So. 2d 1215, 1218 (Fla. 5th DCA 2004). The trial court conducted an

extensive evidentiary hearing on the fee issue and determined that a multiplier was

appropriate. I cannot conclude that the trial court’s decision constituted an abuse of

discretion; thus, I would affirm the use of a multiplier. I respectfully dissent on this issue

but concur with the majority opinion in all other respects.




       3 In fact, I joined in the Federated decision cited by the majority because the record
in that case did not support the use of a multiplier.

                                              6
