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Smith v. Unum Life Insurance Company of America

Florida Court of Appeals, Fifth District

June 21, 2019

JOHN SMITH, A NATURAL PERSON PROCEEDING UNDER A PSEUDONYM, Appellant,
v.
UNUM LIFE INSURANCE COMPANY OF AMERICA, Appellee.

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

          Appeal from the Circuit Court for Orange County, Janet C. Thorpe, Judge.

          W. Lane Neilson, of Neilson & Associates, P.A., Orlando, for Appellant.

          Kristina B. Pett and Daniel R. Lazaro, of McDowell Hetherington LLP, Boca Raton, for Appellee.

          GROSSHANS, J.

         John Smith (Smith) appeals the final judgment awarding him attorney's fees and costs, arguing that the trial court erred in determining the final amount owed by Unum Life Insurance Company of America (Unum). We agree that the trial court erred in refusing to grant prejudgment interest and in failing to tax as costs a portion of Smith's expert's fee. We affirm in all other respects.

         Smith filed a claim with Unum, seeking benefits pursuant to a disability policy issued by Unum. After Unum denied the claim, Smith sued Unum asserting breach of contract and requesting attorney's fees.

         After three years of litigation, the parties settled the case. The settlement agreement included the following provision addressing fees and costs:

The parties agree that SMITH is entitled to reasonable attorneys' fees and costs with regard to the Lawsuit against UNUM, but not as to the time period for which fees are payable. The parties will seek to agree to the amount of said fees and costs, and if unable to agree, will have the Court determine the amount of costs, a reasonable attorneys' fee and the time period for which fees are payable. The parties so agree in order to resolve this Lawsuit.

         The parties were unable to reach an agreement as to the amount of attorney's fees, and the trial court referred the issue to mediation, ordering that the mediation costs be divided equally between the parties. After receiving a report that the mediation was unsuccessful, the court referred the matter to a special master. In the referral order, the court noted that the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions (the Guidelines) was to be applied and that the special master's fees were to be equally divided between the parties.

         The special master held an evidentiary hearing, wherein both parties presented expert testimony and introduced numerous exhibits. Subsequently, the special master submitted a lengthy report and recommendation to the trial court. The special master recommended a fifty percent reduction in attorney time based on numerous factors including deductions for pre-suit billing time and entries that were non-compensable, duplicative, excessive, and unnecessary. Additionally, the special master recommended not awarding fees for paralegal time, prejudgment interest, or a contingency fee multiplier. As for costs, the special master recommended taxing Smith's expert's testifying fee but not his preparation time.

         Smith filed numerous exceptions to the report and requested that the court also include in the final award costs associated with mediation and the special master's fees. Following a hearing, the trial court overruled the exceptions, denied all additional motions for costs, and entered a final judgment consistent with the special master's recommendations which provided for attorney's fees in the amount of $97, 956.25 and costs in the amount of $11, 126.40. This appeal timely followed.

         "A trial court's decision to accept or reject a magistrate's conclusions is reviewed for an abuse of discretion." Kenney v. Goff, 259 So.3d 140, 146 (Fla. 4th DCA 2018) (citing Glaister v. Glaister, 137 So.3d 513, 516 (Fla. 4th DCA 2014). "[A]n appellate court will review de novo the trial court's decision that the magistrate's findings of fact 'are supported by competent, substantial evidence and are not clearly erroneous while giving both the magistrate and the trial court the benefit of the presumption of correctness.'" Id. (quoting Glaister, 137 So.3d at 516).

         Smith raises nine issues on appeal, but we find merit in only two: namely that the trial court erred in refusing to grant prejudgment interest on the award of attorney's fees and that the trial court abused its discretion by not taxing ...


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