USAA Casualty Insurance Company v. Prime Care Chiropractic Centers, P.A., ___ So. 3d ___, 37 Fla. L. Weekly D1107 (Fla. 2d DCA May 9,2012)

A chiropractic center, as assignee of the insured under a PIP policy, brought an action against the insurance company in county court to recover full payment for services rendered to the insured. “[E]ventually [the insurance company] confessed judgment by paying the claim in full, plus interest,” and the plaintiff filed a motion for attorney’s fees under Section 627.428, Florida Statutes. During the hearing on the motion, the plaintiff’s corporate representative testified that after three law firms in Polk County refused to handle the case, the Florida Chiropractic Association referred him to trial counsel in Tallahassee. Although this testimony established only “a general unwillingness to take the case, not a specific refusal to take the case without the possibility of a multiplier,” the county court awarded a multiplier of 2.0 based upon the testimony of the plaintiff’s expert witness. In addition, based upon the conflict between Massie v. Progressive Express Insurance Co., 25 So. 3d 584 (Fla. 1st DCA 2009), review dismissed, 32 So. 3d 60 (Fla. 2010), and Progressive Express Insurance Co. v. Schultz, 948 So. 2d 1027 (Fla. 5th DCA), review denied, 966 So. 2d 968 (Fla. 2007), the county court certified to the district court of appeal, as a question of great public importance, whether “expert testimony alone” may establish that “the relevant market requires a contingency fee multiplier to obtain competent counsel.”’ The district court of appeal reversed the award of the multiplier without answering the certified question. “Here, the county court’s findings reflected that [the plaintiff] did not have any difficulty retaining counsel who would accept its case without the possibility of a multiplier. Similarly, although [the plaintiff’s expert] summarily concluded that the market required a multiplier for [the plaintiff] to obtain competent counsel, he did not provide the court with any competent evidence to support his broad assertion. Thus, there was no competent, substantial evidence that [the plaintiff] faced any substantial difficulties in finding competent counsel, and the county court abused its discretion by awarding the multiplier. In light of this error, we do not reach the certified question.”