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Just The Facts Please

November 11, 2021

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<p style="text-align: justify;">Few things are more irritating than having to tell a client, in a first party insurance claim, that it must pay prevailing party attorney’s fees and costs that are two, three, four times or more than that recovered by the insured. This is especially true in Florida where it often seems that excessive, legally unsupported, fee and cost awards are not the exception, but the norm.</p>
<p style="text-align: justify;">In<em> </em><a href=""><em>Citizens</em></a> <em>Property Insurance Corp. v. Casanas,</em> 2021 LEXIS 14270; 2021 WL 4978608 (Fla. 3d DCA October 27, 2021), a simple hurricane roof damage case, the claim had been “minimally litigated,” with no depositions, no dispositive motions, few hearings and no trial. After the claim was settled at mediation for $35,000, the insured moved for and received a prevailing party fee and cost award of $150,600.</p>
<p style="text-align: justify;">On appeal, the <em>Casanas</em> Court found that the party seeking a fee and cost award must provide evidentiary support for the amounts demanded and where the “record on appeal is devoid of substantial competent evidence to support the order, the appellate court will reverse the award” and not allow the insured a do over, a second bite at the apple, on remand.</p>
<p style="text-align: justify;">Applying this reasoning to the case at hand, the court held that while the “hourly rates billed for each attorney were reasonable,” the number of hours awarded was “arbitrary and unsupported” and that on remand the trial court should award attorney’s fees for 81.1 hours of work, “the only number for which there is competent, substantial evidence adduced by the defendant's fee expert following a line-by-line accounting of the compensable hours.” The appellate court also reversed the cost order, finding that there was no evidentiary basis for the costs awarded. Finally, finding that there was no evidentiary basis for awarding an hourly fee enhancement multiplier, the <em>Casanas</em> Court struck that award too.</p>
<p style="text-align: justify;">While <em>Casanas</em> does not change the method of determining prevailing party fee and costs awards, it does signal that Florida’s appellate courts will not rubber stamp excessive, legally unsupported, fee and cost awards. <em>Casanas</em> also stands for the proposition that an insured seeking prevailing party fees and costs only gets one bite at the apple and if they don’t get it right the first time, there are no do overs.</p>
<p style="text-align: justify;">Thanks to Charles M-P “Chip” George for his contribution to this post. Please contact<a href=""> Chip</a> with any questions.</p>

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