Hiscox Dedicated Corporate Member, Ltd. v. Matrix Group Limited, Inc. et al

Filing 475

ORDER: The Court GRANTS Defendants Matrix Group Limited, Inc. and Louis Orloff's Motion for Attorneys' Fees 426 by awarding $2,218,671.60 in attorneys fees. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 6/15/2012. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HISCOX DEDICATED CORPORATE
MEMBER, LTD.,
Plaintiff,
v.

Case No.

8:09-cv-2465-T-33AEP

MATRIX GROUP LIMITED, INC. and
LOUIS ORLOFF,
Defendants.
______________________________/
ORDER
This cause comes before the Court pursuant to Defendants
Matrix Group Limited, Inc. and Louis Orloff’s Motion for
Attorneys’ Fees (Doc. # 426), which was filed on January 26,
2012. Plaintiff Hiscox Dedicated Corporate Member, Ltd. filed
a Response in Opposition to the Motion for Attorneys’ Fees
(Doc. # 472) on June 5, 2012.

For the reasons that follow,

the Court grants Defendants’ attorneys’ fees in the amount of
$2,218,671.60.
I.

Background and Procedural History
On October 13, 2011, following an eleven-day trial, the

jury returned a verdict in favor of Defendants. Specifically,
the jury determined that the July 5, 2009, fire at the Matrix
building was not intentionally set, that Defendants did not
commit fraud and did not intentionally misrepresent or conceal
material facts, and that the Matrix building’s burglar alarm

was not suspended or impaired. (Doc. # 389). The jury awarded
Defendants the following damages:
a.
b.

Damages to the Building: $702,600.00
Damages to the Inventory and Contents:
$1,400,000.00
c.
Damages
due
to
Business
Interruption:
$600,000.00
d.
Other Damages under the Policy: $12,500.00
Total Damages: $2,715,100.00
(Doc. # 389).
Thereafter, Hiscox moved for judgment as a matter of law
pursuant to Rule 50(a) of the Federal Rules of Civil Procedure
(Doc. # 394) and also sought an order of remittitur requesting
that the Court reduce the jury’s verdict by $447,330.51, the
amount Hiscox previously paid to Superior Bank in satisfaction
of the mortgage on the Matrix property.

(Doc. # 397).

On

January 12, 2012, this Court denied the Motion for Judgment as
a Matter of Law and granted the Motion for Remittitur. (Doc.
# 417).

Specifically, the Court reduced that portion of the

jury’s verdict in which the jury awarded $702,600.00 for
“Damages to the Building” by $447,330.51.

On January 12,

2012, the Court entered its Judgment in favor of Matrix and
Mr. Orloff in the amount of $2,267,769.49. (Doc. # 421).
On January 25, 2012, Hiscox filed its Emergency Motion to
Stay Proceedings to Enforce Money Judgment Pending Disposition
of Post-Judgment Motions (Doc. # 423).
2

The Court stayed the

Judgment against Hiscox pending further order and required
Hiscox

to

post

a

supersedeas

bond

in

the

amount

of

$2,834,711.74. (Doc. # 429).
On January 26, 2012, Matrix and Mr. Orloff filed a Motion
to Alter Judgment to include interest, which this Court
granted as an unopposed Motion after Hiscox failed to file a
response.

(Doc. # 437). The Court entered its Amended

Judgment in favor of Defendants in the amount of $2,577,691.75
on February 28, 2012. (Doc. # 443).
On February 9, 2012, Hiscox filed its Renewed Motion for
Judgment as a Matter of Law and New Trial (Doc. # 436) and on
March 26, 2012, Hiscox filed the same Motion, but directed to
the Amended Judgment. (Doc. # 452).

The Court denied the

Motions on April 25, 2012. (Doc. # 458).

At this juncture,

Defendants seek an award of attorneys’ fees.
II.

Analysis
Defendants utilized four separate legal teams in this

matter.

In the Motion, Defendants request attorneys’ fees in

the amount of $2,817,155.00 (plus any additional attorneys’
fees incurred by Defendants after January 13, 2012) multiplied
by a contingency risk multiplier of 2.5. Defendants seek this
award pursuant to Florida Statute § 627.428, which requires an
award of attorneys’ fees to a prevailing insured in a coverage
3

case such as this one.1

Plaintiff agrees that Defendants are

entitled to an award of attorneys’ fees.

However, Plaintiff

characterizes

as

Defendants’

fee

request

excessive

and

disputes the number of hours requested, the hourly rates of
the billing attorneys, paralegals, and other workers, and the
applicability of a fee multiplier.
A.

The Lawfirms and Timekeepers
1.

Merlin Law Group

Defendants retained the Merlin Law Group in August 2009
to represent Mr. Orloff and Matrix employees during the presuit investigation. (Doc. # 426-5 at ¶ 3). Defendants seek to
recover $16,305.00 for the work completed by the Merlin Law
Group as follows:
Attorneys

hours

Devaney, Donna

Hall, Jacquelynn

amount

21.20 $450

$9,540.00

5.70 $450

Kestenbaum, Mary
Paralegal

rate

$2,565.00

hours

rate
33.60 $125

1

amount
$4,200.00

Plaintiff submits that Defendants are entitled to
attorneys’ fees pursuant to Florida Statute § 626.9373, rather
than § 627.428, based on Plaintiff’s surplus lines insurance
status. Whether the fees are predicated upon Florida Statute
§ 626.9373 or § 627.428 is a distinction without a difference.
These two fee-shifting statutes are applied using the same
analytical framework and require an award of fees to the
prevailing insured in coverage matters.
4

TOTAL
2.

$16,305.00

Holland & Knight

Defendants retained Holland & Knight on an unspecified
date and agreed to pay these attorneys on an hourly basis.
(Doc. # 426-1 at ¶¶ 4,6).

Defendants seek $48,578.50 for

Holland & Knight’s legal fees as follows:
Attorneys

hours

rate

amount

Boeke, Noel

.30 $360

$108.00

Boeke, Noel

.04 $420

$168.00

Dufoe, William

4.90 $420

$2,058.00

Thomas, Natalie

50.70 $320

$16,224.00

Parrish, Paul

15.10 $370

$5,587.00

Parrish, Paul

62.30 $390

$24,297.00

Paralegal

hours

rate

Daniel, Nancy

amount

.70 $195

$136.50

TOTAL
3.

$48,578.50

Quarles & Brady

In April 2010, one of the Holland & Knight attorneys,
Paul Parrish, Esq., left Holland & Knight and became employed
at Quarles & Brady LLP. Id. at ¶ 2.
Parrish

to

Quarles

and

agreed

to

Defendants followed
Quarles

representing

Defendants on a contingency fee basis. Id. at ¶¶ 5,7. Parrish
explains that Quarles generated attorneys’ fees in the amount

5

of

$2,792,793.50;

amount,

$79,243.00

however,
is

Parrish

not

submits

compensable

that

of

pursuant

to

this
the

applicable fee-shifting statute because these fees were spent
litigating the amount of attorneys fees to be awarded and
other non-compensable matters. Id. at ¶¶ 8-10.2
The

table

of

fees

submitted

by

Quarles

has

been

replicated below; however, the information submitted to the
Court contains multiple, significant mathematical errors. The
Court has therefore modified the chart, and the Court has
highlighted

those

portions

of

the

chart

that

originally

contained mathematical errors, as follows:
Attorneys

hours

rate

amount

Parrish, Paul

2,012.80 $495

$996,336.00

Parrish, Paul

296.20 $505

$149,581.00

10.30 $415

$4,274.50

1,910.70 $350

$668,745.00

Brown, Benjamin

8.50 $270

$2,295.00

Fowler, Andrea

3.40 $210

$714.00

Lucente, Cheryl

3.10 $270

$837.00

Wilbert, Johanna

1.10 $265

$291.50

Tretter, Andrew
Edson, Kelli

2

Under Florida law, attorney’s fees incurred in the
course of a dispute concerning attorney’s fees are only
recoverable under fee-shifting statutes when the dispute is
over the “entitlement” to attorneys fees, not for litigation
pertaining to the “amount” of fees owed. State Farm Fire &
Cas. Co. v. Palma, 629 So. 2d 830, 831-32 (Fla. 1993).
6

Smith, Keely

15.60 $140

$2,184.00

Davis, Kelly

11.30 $240

$2,712.00

Raines, Lauren

42.80 $310

$13,268.00

Raines, Lauren

1.30 $315

$409.50

Saxe, Lindsay

47.60 $235

$11,186.00

Bender, Marshall

75.20 $205

$15,416.00

Bender, Marshall

98.40 $220

$21,648.00

Bender, Marshall

2.10 $230

$483.00

Leeman, Mike

119.30 $205

$24,456.50

Leeman, Mike

1,021.80 $210

$214,578.00

Leeman, Mike

75.20 $225

$16,920.00

Upshaw-Frazier, Rena

104.80 $280

$29,344.00

Knox, Doug

456.90 $360

$164,484.00

Knox, Doug

67.60 $375

$25,350.00

9.60 $495

$4,752.00

Hamilton, William
Paralegals

hours

rate

amount

O’Connor, John D.

1,774.90 $190

$337,231.00

O’Connor, John D.

179.20 $195

$34,944.00

39.50 $200

$7,900.00

Budzisz, Tina
Budzisz, Tina

.50

Johnson, Dawn
Legal Specialists
Kemper, Daniel

$102.50

8.10 $95
hours

rate

$769.50
amount

115.50 $205

$23,677.50

.20 $200

$40.00

69.50 $205

$14,247.50

Mical, Kevin
Marshall, Raechael

$205

TOTAL

7

$2,789,177.00

As Defendants admit that $79,243.00 of this amount is not
compensable, the Court surmises that Defendants actually seek
$2,709,934.00 for the work completed by Quarles & Brady.
4.

Brannock & Humphries

Defendants retained the Brannock firm to represent them
in September 2011, for the purpose of preserving the trial
record for appeal. (Doc. # 426-6 at ¶ 4).

Defendants seek

$36,487.00 in legal fees for the Brannock firm as follows:
Attorneys

hours

rate

amount

Brannock, Steven

16.50 $450

$7,425.00

Humphries, Celene

35.30 $425

$15,002.50

Carlin, Tracy

4.70 $425

$1,997.50

Luka, Maegen

43.80 $250

$10,950.00

Paralegal

hours

DePerto, Sarah
Accountant

rate
8.80 $125

hours

Ehrhard, Shannon

rate
.20 $60
TOTAL

amount
$1,100.00
amount
$12.00
$36,487.00

Using the information submitted by Defendants, the Court
determines

that

Defendants

are

actually

requesting

$2,811,304.50 in attorneys fees.3

3

(Merlin Law Group $16,305.00 + Holland & Knight
$48,578.50 + Quarles & Brady $2,709,934.00 + Brannock &
Humphries $36,487.00 = $2,811,304.50).
8

B.

Legal Standard

In this diversity case, the issue of attorneys’ fees is
decided under Florida law. See Davis v. Nat’l Med. Enters.,
253 F.3d 1314, 1319, n.6 (11th Cir. 2001).

Florida Courts

have adopted the federal lodestar approach for analyzing
attorneys’ fees awarded pursuant to Florida fee-shifting
statutes.

See Fla. Patient’s Comp. Fund v. Rowe, 472 So. 2d

1145, 1150 (Fla. 1985)(“We find the federal lodestar approach
.

.

.

provides

structure.”).

a

suitable

foundation

The

lodestar

is

a

for

product

an
of

objective
the

hours

reasonably expended on a case multiplied by a reasonable
hourly rate.

The Court will consider the following factors,

enumerated in Rowe and set forth in The Florida Bar Code of
Professional Responsibility, when determining the lodestar:
(1) The time and labor required, the novelty and
difficulty of the question involved, and the skill
requisite to perform the legal services properly.
(2) The likelihood, if apparent to the client, that
the acceptance of the particular employment will
preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for
similar legal services.
(4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or
by the circumstances.
(6) The nature and length of the professional
relationship with the client.
(7) The experience, reputation, and ability of the
lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contingent.

9

Id.4
In addition, as a contingency fee agreement governs the
relationship between the Defendants and Quarles & Brady, the
court must also determine whether to enhance the lodestar with
a

multiplier

pursuant

to

Standard

Guaranty

Ins.

Co.

v.

Quanstrom, 555 So. 2d 828, 831 (Fla. 1990). In conducting its
analysis, the Court is mindful that it is “not authorized to
be generous with the money of others, and it is as much the
duty of courts to see that excessive fees and expenses are not
awarded as it is to see that an adequate amount is awarded.”
Am. Civil Liberties Union of Ga. v. Barnes, 168 F.3d 423, 428
(11th Cir. 1999).
C.

Number of Hours Expended

Plaintiff submitted a detailed response in opposition to
the Motion (Doc. # 472) and also filed the 51-page affidavit
of Pedro Bajo, Esq. (Doc. # 472-4). Therein, Plaintiff argues
that “Defendants’ claimed hours must be reduced because they
are unreasonable and excessive.” (Doc. # 472 at 2).

This

Court agrees and determines that it is appropriate to reduce
the amount of fees sought by Defendants by 20%. See Ruderman

4

The Court has taken into consideration each of the
eight Rowe factors, even if the Court has not explicitly
stated the manner in which such factors have affected its
analysis.
10

v. Wash. Nat’l Ins. Corp., No. 11-11416, 2012 U.S. App. LEXIS
6339,

at

*2-3

(11th

Cir.

Mar.

29,

2012)(reducing

fee

application by 20% and holding, “When fee documentation is
voluminous, an hour-by-hour review is ‘impractical and a waste
of judicial resources’ and an across-the-board percentage cut
is permitted.”)(quoting Loranger v. Stierheim, 10 F.3d 776,
783 (11th Cir. 1994)).

A 20% across-the-board fee reduction

is justified in this case for the following reasons.
1.

Block Billing and Imprecise Billing

“One basis for reducing the requested number of hours is
the use of block billing, which refers to the practice of
including multiple distinct tasks within the same time entry.”
Bujanowski v. Kocontes, No. 8:08-cv-390-T-33EAJ, 2009 WL
1564263, at *2 (M.D. Fla. Feb. 2, 2009).

“Block billing

occurs when an attorney lists all the day’s tasks on a case in
a single entry, without separately identifying the time spent
on

each

task.”

Ceres

Envtl.

Servs.

v.

Colonel

McCrary

Trucking, LLC, No. 11-12787, 2012 U.S. App. LEXIS 8271, at *11
(11th Cir. Apr. 25, 2012).

The Ceres court noted that block

billing results in “imprecision in an attorney’s records
.

.

.

a

problem

for

which

the

opponent

should

not

be

penalized” and approved the use of across-the-board reductions
to offset the ill effects of block billing.
11

Id. (internal

citations omitted).

As correctly noted by Bajo, “Defense

counsel’s timesheets are replete with block billed entries
such that not a single page exists without a block billed
entry among the hundreds of pages of timesheets and more than
a thousand block billed entries have been presented.” (Doc. #
472-4 at ¶ 47).

The following are some examples of block

billing found in defense counsels’ timesheets:
8/4/2011, Paul Parrish, 7.0 hours
Pretrial
preparation
including
review
of
depositions,
documents,
expert
reports
and
demonstrative exhibits; preparation of witness
outlines; research into evidentiary issues.
8/5/2011, Kelli Edson, 7.2 hours
Prepare
opposition
to
Hiscox’s
Motion
for
Spoliation Sanctions; telephone conference with
David Frank of Team Lightning; analyze strategy for
opposition to Hiscox’s Motion for Spoliation
Sanctions; supervise compilation of examples of
emails to be attached to opposition; prepare
correspondence
to
client
regarding
Hiscox’s
demonstrative exhibits; prepare correspondence to
Hiscox’s counsel, V. Beilman, regarding Hiscox’s
failure to produce demonstrative exhibits for
review; analyze witness examinations to be prepared
for trial; analyze trial strategy and structure for
opening statement based on results of mock trial
analysis; consider strategy for structure of
opposition to Hiscox’s motion to strike Carl
Crawford; telephone conference with client.
(Doc. # 426-3 at 18-19).
The presence of block billing makes it impossible for the
Court to determine how much time was actually spent on any
12

particular task.
Defendants’

In addition, the descriptions used by

attorneys

are

vague

and

describe the actual task performed.

oftentimes

fail

to

More troubling is the

fact that Parrish’s affidavit states that $79,243.00 is not
compensable, but Parrish failed to identify and remove from
the time sheets submitted to the Court entries associated with
that non-compensable time.

Furthermore, Parrish’s affidavit

contained mathematical errors. (Doc. # 462-1 at 4-5).

In

addition, the amount Defendants are seeking does not match the
amount Defendants’ fee expert, Timothy Andreu, Esq., states
should be awarded, which is $2,814,925.50.5
In addition to the copious block billed entries and
defense counsels’ failure to omit from the fee ledgers time
that Defendants admit is non-compensable, the Court also
determines that many of the time entries are too vague and
generic to be compensable.

As an example, Parrish billed 7.0

hours on January 26, 2011, for the following, “Deposition

5

Defendants submitted the declaration of Timothy Andreu,
Esq. as to the reasonableness of Defendants’ attorneys’ fees.
(Doc. # 426-7). Without providing any substantive analysis,
Andreu simply submits: “In my opinion, the amount of
$2,814,925.50 is a reasonable amount of attorneys’ fees for
the work performed by counsel for defendants.” Id. at ¶ 6. It
appears that Andreau recommends that this Court award fees
that both sides agree are not proper under the applicable feeshifting statute.
13

preparation; strategy; review file; meeting with expert;
meeting with client.”

(Doc. # 426-2 at 12).

As asserted by

Bajo, “even if [Parrish’s] entries had been broken down into
task billed entries, it would still be impossible to determine
the reasonableness of the time spent on generically described
tasks.” (Doc. # 472-4 at ¶ 57).
In addition, Parrish used the following entry in 33
different and nearly consecutive entries: “Trial preparation
including review of depositions, documents, expert reports and
demonstrative

exhibits;

preparation

of

witness

outlines,

research into evidentiary issues.” During trial, he added the
words “attend trial” but otherwise left the description the
same.
Furthermore, it appears that attorneys completing the
same tasks billed different amounts of time for such tasks.
By way of example, on January 20, 2010, Attorney Parrish and
Attorney Thomas met Hiscox’s counsel at the subject warehouse.
Thomas

billed

1.9

hours

for

attending

the

meeting

and

performing a number of other tasks while Parrish billed 3.1
hours solely for attending the meeting with Hiscox’s counsel:
1/20/2010, Paul Parrish, 3.1 hours
Meet with opposing attorney
(Doc. # 426-1 at 25).
14

1/20/2010, Natalie Thomas, 1.9 hours
Meeting with partner and opposing counsel at
warehouse
regarding
case,
background
and
allegations; email correspondence with client and
private investigator regarding scheduling meeting.
(Doc. # 426-1 at 25).
The many instances of block billing and generic and
imprecise billing justify the Court’s decision to decrease
Defendants’ requested attorneys’ fees by 20% across the board.
2. Clerical Work
Quarles billed $37,965.00 for work performed by its three
legal specialists:
Kemper, Daniel

115.50 $205

$23,677.50

.20 $200

$40.00

69.50 $205

$14,247.50

Mical, Kevin
Marshall, Raechael

TOTAL

$37,965.00

These “specialists” are neither attorneys nor are they
law clerks or paralegals. Clerical and administrative work is
a part of a lawfirm’s overhead and should not be reflected in
a

fee

ledger.

Regulation,

Am.

Charities

for

Reasonable

Fundraising

Inc. v. Pinellas County, 278 F. Supp. 2d 1301,

1321 (M.D. Fla. 2003).

The Court accordingly disallows

$37,965.00.
In addition, the Court has identified many occasions in

15

which Defendants’ attorneys and paralegals billed for purely
clerical tasks. As an example, on February 4, 2011, paralegal
John O’Connor billed 7.8 hours for the following tasks: Phone
calls and e-mails with vendor regarding the continued copying
and bates labeling of documents picked up from R. Symanski;
continue review of photos of fire; preparation of documents to
be

used

during

the

S.

calendar

items.

(Doc.

Retallick
#

426-2

at

deposition;

update

16)(emphasis

and

added).

O’Connor also billed 8.1 hours on August 4, 2011, as follows:
Edit trial list; prepare trial exhibits for review by opposing
counsel;

observe

opposition

counsel’s

review

of

trial

documents; organize war room and files. (Doc. # 426-3 at
18)(emphasis added).
Likewise, attorney Michael Leeman, Esq. billed 11 hours
on September 22, 2011 as follows: Trial preparation; review
and revise motion for use of Diane Davis deposition; research
burden of proof re availability of witnesses; critique trialrun of opening statement; meet with Geno Knowles regarding
model issues and fixes; move various exhibits to federal
courthouse.

(Doc. # 426-3 at 46)(emphasis added).

Although the Court cannot ascertain the number of hours
O’Connor and Leeman spent conducting the highlighted clerical

16

tasks

due

to

the

presence

of

block

billing,

the

Court

determines that these selected examples support the court’s
decision to employ an across-the-board reduction of Defense
counsels’ hours.
3.

Discrete Unsuccessful Litigation Strategies

Although Defendants ultimately prevailed in this action,
the Court’s decision to reduce their attorneys’ fees by 20% is
justified due to several fruitless litigation strategies
Defendants employed. See Duckworth v. Whisenant, 97 F.3d 1393,
1397

(11th

Cir.

unsuccessful

First

1996)(deducting
Amendment

hours

and

spent

malicious

pursuing

prosecution

claims).
First,

Defendants

opposed

Plaintiff’s

Motion

for

Remittitur, a motion granted by the Court. Second, Defendants
unsuccessfully

litigated

the

issue

of

the

admission

of

polygraph evidence. Third, Defendants unsuccessfully litigated
the issue of child witnesses and the record reflects that none
of the children at issue were presented as witnesses in this
case.

Fourth, Defendants filed a motion for summary judgment

in the face of obvious factual disputes.

More troubling is

the fact that Defendants’ time records include 94 time entries
by seven different timekeepers referencing the motion for
summary judgment.

Although the presence of block billing
17

precludes

this

Court

from

decisively

excising

the

time

Defendants spent preparing the motion for summary judgment,
the excessive billing associated with the motion for summary
judgment, as well as the discrete unsuccessful litigation
strategies outlined above, warrants a reduction of Defendants’
requested fees by 20%.
4.

Video Surveillance

Defendants’ fee ledger reflects over 100 entries totaling
444.95

hours

for

activity

related

to

surveillance of the subject property.

viewing

the

video

Because Defendants’

counsel block billed their time, it is not possible for the
Court to extract redundant entries from the fee ledger.
However, regardless of the presence of block billing, this
Court

can

easily

unreasonably

ascertain

expended

as

that

eight

excessive
different

hours

were

timekeepers,

attorneys and paralegals alike, viewed the video surveillance
multiple times.
D.

Hourly Rates

This Court determines a reasonable hourly rate based upon
the prevailing market rate in the city the case was filed for
similar

services

by

similarly

trained

and

experienced

attorneys in the relevant legal community. Duckworth, 97 F.3d
at 1396.

As fee movants, Defendants bear the burden of
18

establishing entitlement to the rates claimed, and they have
not done so.

Defendants seek attorneys fees for 35 different

timekeepers, of whom 25 are attorneys.

Many of the attorneys

are requesting varying hourly rates such that there are 26
attorney rates at issue here, ranging from $140 to $505 per
hour. As for the six paralegals, their requested hourly rates
span between $95 and $205.
As it is impractical to perform an hour-by-hour analysis
of Defendants’ hours expended, it is also impractical to
perform

a

timekeeper-by-timekeeper

timekeeper’s reasonable hourly rate.

analysis

as

to

each

This is due, in large

part, to the fact that Defendants have not provided any
relevant information about the experience and background of a
majority of Defendants’ timekeepers.

Rather than reducing

individual hourly rates, the Court determines that it is
appropriate to reduce the fee application by 20% across the
board.
E.

Fee Multiplier

The Florida Supreme Court has set forth three distinct
categories of cases in which the Court may consider applying
a contingency fee multiplier. Bell v. U.S.B. Acquisition Co.,
734 So. 2d 403 (Fla. 1999).

In determining whether to apply

a contingency fee multiplier, the Court must first determine
19

which category this case falls into.

In Bell, the Court

explained: “[W]e find it appropriate to place attorney’s fees
cases into the following three categories: (1) public policy
enforcement cases; (2) tort and contract claims; and (3)
family law, eminent domain, and estate and trust matters. The
categories are not intended to be all-inclusive.” 734 So. 2d
at 408.
For the first type of cases, public policy enforcement
cases,

the

Blanchard

Bell
that

Court
utilizes

“adopted

the

multiple

federal

factors

to

approach

of

arrive

at

reasonable attorney’s fees.6 In these cases, the existence of
a contingency fee arrangement is but one factor to consider in
determining reasonable attorney’s fee, and the trial court is
not limited in its award by the fee arrangement between the
party and his or her attorney.” Id.

6

In Blanchard v. Bergeron, 489 U.S. 87, 91 n. 5 (1989),
the Court set forth the following factors for consideration:
(1) the time and labor required; (2) the novelty and
difficulty of the questions; (3) the skill requisite to
perform the legal service properly; (4) the preclusion of
other employment by the attorney due to acceptance of the
case; (5) the customary fee; (6) whether the fee is fixed or
contingent; (7) time limitations imposed by the client or the
circumstances; (8) the amount involved and the results
obtained; (9) the experience, reputation, and ability of the
attorneys; (10) the “undesirability” of the case; (11) the
nature and length of the professional relationship with the
client; and (12) awards in similar cases.
20

As for the second category of cases, tort and contract
cases, the Court explained:
[T]he trial court should consider the following
factors in determining whether a multiplier is
necessary: (1) whether the relevant market requires
a contingency fee multiplier to obtain competent
counsel; (2) whether the attorney was able to
mitigate the risk of non-payment in any other way;
and (3) whether any of the factors set forth in
Rowe
are
applicable,
especially
the
amount
involved, the results obtained, and the type of fee
arrangement between the attorney and his client.
Evidence of these factors must be presented to
justify the utilization of a multiplier . . . If
the trial court determines that success was more
likely than not at the outset, it may apply a
multiplier of 1 to 1.5; if the trial court
determines that the likelihood of success was
approximately even at the outset, the trial court
may apply a multiplier of 1.5 to 2.0; and if the
trial court determines that success was unlikely at
the outset, it may apply a multiplier of 2.0 to
2.5.
Id. at 408.
In the third category of cases, encompassing family and
trusts

and

estates

law,

the

court

determined

that

a

contingency fee multiplier is generally not appropriate.
Bell, 734 So.2d at 408, n. 7.
Here, the parties dispute whether this case falls into
the public policy enforcement category or tort and contract
category.

Defendants

assert

that

this

case

should

be

evaluated as a public policy enforcement case rather than a
contract case. (Doc. # 426 at 15).
21

Defendants filed the

affidavit of Jacob J. Munch, Esq. (Doc. # 426-8) in which
Munch states his opinion that this case should be placed in
the public policy enforcement category.

Id. at ¶ 7.

Munch

suggests that this case warrants a multiplier of 2 to 2.5, and
states, “it looked like success would have been unlikely at
the outset of the case.”

Id. at ¶ 10.

After considering the case law, the Court determines that
this case falls into the second category, tort and contract.
The

cases

that

have

considered

whether

to

apply

a

fee

multiplier to attorney’s fees awarded pursuant to Florida’s
insurance

fee-shifting

statutes

contract” analytical framework.

have

used

the

“tort

and

For instance, in Holiday v.

Nationwide Mutual Fire Insurance, 864 So. 2d 1215 (Fla. 5th
DCA 2004), Pamela Holiday and Leonard Shealey insured their
home against the risk of fire with a Nationwide insurance
policy.

Id.

at

1271.

“After

the

couple

ended

their

relationship, a suspicious conflagration occurred in the
residence . . . [w]hen arson was determined to be the cause of
the fire, and there was some indication that Mr. Shealey might
have been the culprit, Nationwide declined coverage.” Id. Ms.
Holiday

and

Mr.

Shealey

brought

suit

and

succeeded

in

recovering a verdict for the full amount they sought after a
jury trial. Id.
22

Thereafter, Ms. Holiday and Mr. Shealey sought attorney’s
fees pursuant to Florida Statute § 627.428 and also sought a
contingency fee risk multiplier. Id. at 1218. Relying on
Quanstrom, the court determined that the case fell under the
“tort and contract” category and awarded a fee multiplier of
2.0. Id. at 1218-19.
The Holiday case does not stand alone in categorizing
cases such as the present case as “tort and contract” cases.
See e.g. Jablonski v. St. Paul Fire and Marine Ins., No. 2:07cv-386, 2010 U.S. Dist. LEXIS 34176 (M.D. Fla. Apr. 7, 2010);
U.S. Sec. Ins. Co. v. Lapour, 617 So. 2d 347 (Fla. 3d DCA
1993); Allstate Ins. Co. v. Regar, 942 So. 2d 969 (Fla. 2d DCA
2006); Rynd v. Nationwide Mut. Fire Ins. Co., No. 8:09-cv15556-T-27TGW, 2012 U.S. Dist. LEXIS 37732 (M.D. Fla. Mar. 15,
2012); Gimenez v. Am. Sec. Ins. Co., No. 8:08-cv-2495-T-24TGW,
2009 WL 2256088 (M.D. Fla. July 28, 2009).
Accordingly,

in

determining

whether

to

award

a

fee

multiplier, the Court will consider (1) whether the relevant
market

requires

a

contingency

fee

multiplier

to

obtain

competent counsel; (2) whether the attorney was able to
mitigate the risk of non-payment in any other way; and (3)
whether any of the factors set forth in Rowe are applicable,
especially the amount involved, the results obtained, and the
23

type of fee arrangement between the attorney and his client.
Bell, 734 So. 2d at 408.
The Court determines that a contingency fee multiplier is
not warranted here.

There is a “strong presumption” that the

lodestar is sufficient to attract competent counsel, and the
party seeking the multiplier has the burden of identifying a
factor that the lodestar does not take into account adequately
and

proving

with

specificity

that

the

enhancement

is

warranted. Perdue v. Kenny, 130 S. Ct. 1662, 1669 (2010).
Here, there is no evidence that a multiplier was needed
to attract competent counsel.

To the contrary, Defendants

originally secured representation with two firms on an hourly
basis, the Merlin Law Group and Holland & Knight. Notably
absent from the file is any statement from Mr. Orloff that he
had

any

trouble

finding

an

attorney

to

represent

him.

Counsel’s unsupported assertion that a multiplier was needed
to garner representation simply does not carry the day. See
Gimenez, 2009 WL 2256088, at *3 (placing first party insurance
dispute into “tort and contract” category for multiplier
assessment

and

denying

multiplier

based

upon

lack

of

evidence); Progressive Express Ins. Co. v. Shultz, 948 So. 2d
1027 (Fla. 5th DCA 2007)(use of a multiplier was unwarranted
when there was no evidence that insured had any difficulty
24

obtaining counsel); Eickhard v. Hintze, 969 So. 2d 1219, 1223
(Fla. 1st DCA 2007)(reversing the award of a contingency risk
multiplier when no evidence, aside from plaintiff’s counsel’s
say-so, was presented to show that the market conditions
required

an

enhancement

to

enable

plaintiff

to

obtain

competent counsel).
In addition, the Court determines that defense counsel
were able to mitigate the risk of non-payment by charging
hefty hourly rates in the presence of a mandatory, statutory
fee award to prevailing parties in insurance litigation.
Further, the Court cannot ignore the fact that the fees here
exceed the agreed upon contingency fee amount.

Here, defense

counsel obtained a judgment totaling $2,577,691.75. (Doc. #
443).

Pursuant to the fee agreement (Doc. # 426-1 at 9),

defense counsel are entitled to a fee of $815,538.35. The fee
defense counsel requests is more than three times that amount.
Thus, defense counsel have adequately mitigated their risk of
non-payment.
The Court recognizes that the results obtained for the
client were excellent and that Defendants recovered all that
they demanded.

However, this factor does not warrant the use

of a multiplier as the Court determines that attorneys of
ordinary skill could have obtained the same results for the
25

client and could have done so expending substantially less
resources.

Thus, considering the circumstances of this case,

including the fact that Mr. Orloff was never charged with a
crime, the Court determines that the probability of success
was great from the outset, and the award of a multiplier is
not warranted.
In addition, the Court rejects Defendants’ arguments that
Plaintiff’s “take no prisoners” litigation strategy, including
filing

successive

motions

and

multitudinous

discovery

requests, warrants the award of a multiplier. See Pa. v. Del.
Valley Citizens’ Council for Clean Air, 483 U.S. 711, 730
(1987) (“The matter may have been difficult, wearing, and time
consuming, but that kind of effort has been recognized in the
lodestar award.”).
In sum, the Court finds that the amount of $2,218,671.60
fully

satisfies

“discourag[ing

the

fee-shifting

statute’s

purpose

of

the] contesting of valid claims of insureds.”

Fireman’s Fund Ins. Co. v. Tropical Shipping & Constr. Co.,
254 F.3d 987, 1010 (11th Cir. 2001).

The Court arrives at

this figure as follows: Merlin Law Group $16,305.00 + Holland
& Knight $48,578.50 + Quarles & Brady $2,709,934.00 (comprised
of

$2,789,177.00

-

$79,243.00)

$36,487.00 = $2,811,304.50.

&

Humphries

The Court reduces the

figure of

26

+

Brannock

$2,811,304.50

by

$37,965.00

for

specialists” to yield $2,773,339.50.

the

work

of

“legal

The Court reduces

$2,773,339.50 by 20% for a grand total of $2,218,671.60.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
The Court GRANTS Defendants Matrix Group Limited, Inc.
and Louis Orloff’s Motion for Attorneys’ Fees (Doc. # 426) by
awarding $2,218,671.60 in attorneys’ fees.
DONE and ORDERED in Chambers, in Tampa, Florida, this
15th day of June 2012.

Copies: All Counsel of Record

27