United States District Court, M.D. Florida, Tampa Division
REPORT AND RECOMMENDATION
S. Sneed, Judge
MATTER is before the Court on Defendants All Florida
Weatherproofing & Construction, Inc. (“All
Florida”), Richard Fulford (“Fulford”), and
Robert Mendenhall's (“Mendenhall”) Motion for
Determination of Appellate Attorney's Fees (Dkt. 264) and
Motion for Attorney's Fees. (Dkt. 271.) Plaintiff,
Houston Specialty Insurance Company (“HSIC”),
opposes the motions. (Dkt. 266; Dkt. 264-4; Dkt. 273-1.) Upon
consideration, it is recommended that the motions be granted
2014, HSIC filed this declaratory judgment action (the
“Declaratory Judgment Action”) against its
insureds, All Florida, Fulford, and Mendenhall, to determine
coverage in connection with Enoch Vaughn's
(“Vaughn”) personal injury lawsuit against All
Florida, Fulford, and Mendenhall in Enoch Vaughn et al.
v. All Florida Weatherproofing & Construction, Inc.,
No. 14-000198-CI, in the Sixth Judicial Circuit, in and for
Pinellas County, Florida. (Dkt. 28.) The case proceeded to a
jury trial and the presiding District Judge ultimately
entered a declaratory judgment (the “Declaratory
Judgment”) in favor of All Florida, Fulford,
Mendenhall, and Vaughn. (Dkts. 199, 201.)
appealed the Declaratory Judgment to the Eleventh Circuit
(the “Declaratory Judgment Appeal”). (Dkt. 214.)
While the Declaratory Judgment Appeal was pending, the Court
awarded attorney's fees in favor of All Florida, Fulford,
Mendenhall, and Vaughn, under Fla. Stat. § 627.428.
(Dkts. 246, 247.) HSIC separately appealed the award of
attorney's fees (the “Attorney's Fees
Appeal”), arguing that the award of attorney's fees
was premature and that the Court abused its discretion in
applying a contingency fee multiplier. (Dkt. 251.)
Eleventh Circuit affirmed the Declaratory Judgment entered in
favor of All Florida, Fulford, Mendenhall, and Vaughn.
Houston Specialty Ins. Co. v. Vaughn, 726 Fed.Appx.
750 (11th Cir. 2018). Based on their status as the prevailing
parties in the Declaratory Judgment Appeal, All Florida,
Fulford, and Mendenhall moved for appellate attorney's
fees and also moved the Eleventh Circuit to transfer the
issue to this Court. (Dkt. 264-3.) HSIC responded in
opposition to the Motion for Appellate Attorney's Fees.
(Dkt. 264-4.) On September 13, 2018, the Eleventh Circuit
transferred the Motion for Appellate Attorney's Fees to
this Court. (Dkt. 264-6.) All Florida, Fulford, and
Mendenhall thereafter filed their Motion for Determination of
Appellate Attorney's Fees in this Court. (Dkt. 264.) HSIC
again responded in opposition to the Motion for Appellate
Attorney's Fees. (Dkt. 266.)
Eleventh Circuit also affirmed this Court's award of
attorney's fees in favor of All Florida, Fulford, and
Mendenhall. Houston Specialty Ins. Co. v. Vaughn,
749 Fed.Appx. 800 (11th Cir. 2018). All Florida, Fulford, and
Mendenhall then moved for appellate attorney's fees
expended in litigating the entitlement to attorney's fees
on appeal. (Dkt. 271.) On January 8, 2019, the Eleventh
Circuit transferred this separate attorney's fees motion
to this Court. (Dkt. 270.) The presiding District Court Judge
thereafter referred both motions to the undersigned for the
issuance of a report and recommendation. (Dkt. 274.)
determining the amount of attorney's fees to be awarded,
courts apply the following three-step process: (1) determine
whether the party prevailed in the litigation; (2) determine
the lodestar amount, which is calculated by multiplying the
number of hours reasonably expended in litigating the claim
by the reasonable hourly rate; and (3) adjust the lodestar,
if necessary, to account for the results obtained by the
prevailing party. Atlanta J. & Constitution v. City
of Atlanta Dep't of Aviation, 442 F.3d 1283, 1289
(11th Cir. 2006).
reasonable hourly rate is the prevailing market rate in the
relevant legal community for similar services by lawyers of
reasonably comparable skills, experience, and reputation.
Norman v. Hous. Auth. of City of Montgomery, 836
F.2d 1292, 1299 (11th Cir. 1988). Generally, the relevant
market for purposes of determining the reasonable hourly rate
for an attorney's services is “‘the place
where the case is filed.'” ACLU of Ga. v.
Barnes, 168 F.3d 423, 437 (11th Cir. 1999) (quoting
Cullens v. Ga. Dep't of Transp., 29 F.3d 1489,
1494 (11th Cir. 1994)).
party applying for fees bears the burden of establishing the
reasonableness of the proffered rate, which can be met by
setting forth direct evidence of rates charged under similar
circumstances or submitting opinion evidence of reasonable
rates. Norman, 836 F.2d at 1299. In addition, the
court may use its own expertise and judgment to make an
appropriate independent assessment of the reasonable value of
an attorney's services. Id. at 1303-04. In
calculating the hours reasonably expended on litigation, the
court should exclude excessive, unnecessary, and redundant
hours and any time spent litigating discrete and unsuccessful
claims. Id. at 1301-02.
Florida, Fulford, and Mendenhall request an award of
appellate attorney's fees incurred in responding to
HSIC's unsuccessful appeal of the Declaratory Judgment.
(Dkt. 264; Dkt. 264-3.) All Florida, Fulford, and Mendenhall
also request an award of appellate attorney's fees
incurred in responding to HSIC's separate appeal of this
Court's order awarding attorney's fees incurred in
obtaining the Declaratory Judgment. (Dkt. 271.)
The Declaratory Judgment Appeal
Entitlement to Attorney's Fees
Order Granting Insureds' Motions for Determination of
Entitlement to Reasonable Attorney's Fees Under Section
627.428 of the Florida Statutes (Dkt. 229), the Court
previously found that All Florida, Fulford, and Mendenhall
were entitled to an award of attorney's fees under Fla.
Stat. § 627.428 based on their status as the prevailing
parties in the Declaratory Judgment Action. Specifically, the
Court first observed that Fla. Stat. § 627.428 provides
for the award of attorney's fees upon the rendition of a
judgment or decree by any of the courts of this state against
an insurer and in favor of any . . . insured under a policy
or contract executed by the insurer. (Dkt. 229 at 5.) As the
Court explained, “[t]he Declaratory Judgment in this
case constitutes such a judgment in favor of an insured, the
Insureds, and against an insurer, the Plaintiff.”
(Id. at 5.) As the Court concluded, “looking
no further than the statute itself, the Declaratory Judgment
in their favor entitles Insureds to reasonable attorney's
fees.” (Id.) As previously noted, the Eleventh
Circuit affirmed the award of attorney's fees in favor of
All Florida, Fulford, and Mendenhall. Houston
Specialty, 749 Fed.Appx. at 802-03 (“Because the
district court rendered ‘a judgment . . . against an
insurer and in favor of any named or omnibus insured . . .
under a policy or contract executed by the insurer,' the
district court did not err in awarding attorney's fees to
the defendants[.]” (quoting § 627.428(1)).
recommended that All Florida, Fulford, and Mendenhall are
similarly entitled to an award of appellate attorney's
fees after having defended HSIC's unsuccessful appeal of
the Declaratory Judgment to the Eleventh Circuit. Florida
substantive law applies in this diversity case. See,
e.g., All Underwriters v. Weisberg, 222 F.3d 1309, 1311
(11th Cir. 2000). The operative provision of Florida law,
Fla. Stat. § 627.428, states, in pertinent part:
(1) Upon the rendition of a judgment or decree by any of the
courts of this state against an insurer and in favor of any
named or omnibus insured . . . under a policy or contract
executed by the insurer, the trial court or, in the event
of an appeal in which the insured or beneficiary prevails,
the appellate court shall adjudge or decree against the
insurer and in favor of the insured or beneficiary a
reasonable sum as fees or compensation for the insured's
or beneficiary's attorney prosecuting the suit in which
the recovery is had.
(Emphasis added.) Thus, the applicable provision of Florida
law expressly contemplates the award of attorney's fees
in favor of an insured who prevails on appeal against the
insured's insurance company. Moreover, the Eleventh
Circuit has acknowledged that under § 627.428, an
insured is entitled to recover appellate attorney's fees
incurred where the insured prevails on appeal. Steelmet,
Inc. v. Caribe Towing Corp., 842 F.2d 1237, 1245 (11th
review of the Eleventh Circuit's decision in
Vaughn confirms that All Florida, Fulford, and
Mendenhall prevailed on appeal. 726 Fed.Appx. at 753.
Specifically, HSIC challenged this Court's decision
declining to rule as a matter of law that Mendenhall was an
independent contractor of All Florida. Id. at 751.
If, as HSIC argued, Mendenhall was an independent contractor
of All Florida, then HSIC would have had no duty to defend or
indemnify Mendenhall against Vaughn's state law tort
claims. Id. The Eleventh Circuit rejected HSIC's
argument, concluding that although there was some evidence at
trial suggesting that Mendenhall was an independent
contractor, the evidence did not compel that conclusion as a
matter of law. Id. at 752. HSIC also challenged some
of the jury instructions given at trial. Id. at 753.
The Eleventh Circuit also rejected this argument, concluding
that any errors in the jury instructions were not preserved
or were invited and that, in any event, the instructions
accurately stated Florida law. Id.
All Florida, Fulford, and Mendenhall prevailed as to all of
the issues HSIC raised in the Declaratory Judgment Appeal.
The undersigned finds that under the language of Fla. Stat.
§ 627.428(1), All Florida, Fulford, and Mendenhall are
entitled to an award of attorney's fees reasonably
incurred in the appeal.
Amount of Attorney's Fees
determined that All Florida, Fulford, and Mendenhall are
entitled to an award of attorney's fees incurred in
responding to the Declaratory Judgment Appeal, the
undersigned next addresses the appropriate amount of that fee
as a federal court must apply state law to determine whether
a party is entitled to fees, it must also apply state law to
resolve disputes about the reasonableness of the fees.”
Kearney v. Auto-Owners Ins. Co., 713 F.Supp.2d 1369,
1373 (M.D. Fla. 2010). “The Florida Supreme Court,
however, has turned the law full circle by adopting the
federal lodestar method, rather than a state rule, to
determine what constitutes ‘reasonable'
attorney's fees.” Id. As the Florida
Supreme Court has stated with respect to what makes fees
reasonable, “the federal lodestar approach, . . .
provides a suitable foundation for an objective
structure.” Florida Patient's Comp. Fund v.
Rowe, 472 So.2d 1145, 1150 (Fla. 1985). However,
“the Florida Supreme Court has carved out some
differences to the federal approach.” Kearney,
713 F.Supp.2d at 1374. Specifically, while federal courts
look to the prevailing market rates in the relevant
community, Florida courts may consider subjective factors, as
set out by the Florida Rules of Professional Conduct, as well
as factors provided in the Florida Statutes. Id.
“Thus, while the Court can largely rely on federal law
to award attorney's fees, it must follow Florida law to
the extent that state law differs.” Id.
the lodestar method, the first step in calculating
attorney's fees is determining a reasonable hourly rate.
Under Florida law, factors to be considered ...