Does the Statutory Language of Section 768.79 Expressly Provide Judicial Authority to Use a Multiplier ?
In Pirelli Armstrong Tire Corp. v. Jensen, 752 So. 2d 1275 (Fla. 2d DCA 2000), the Second District Court of Appeal aligned with the Fourth District Court of Appeal's decision in Collins and the Fifth District Court of Appeal's then existing decision in Garrett, and approved the use of a multiplier of 2.5 to increase the lodestar figure of $ 414,000 to over $ 1 million.
In a dissent, Judge Casanueva found that the use of a contingency risk multiplier in the context of section 768.79 violated the constitutional principle of equal protection because only one side in a civil action--the plaintiff--is eligible under a rule 4-1.5 analysis to receive a contingency risk multiplier since it is the plaintiff that is taking the risk of commencing the action.
Judge Casanueva concluded that this Court's decisions in Quanstrom and Rowe did not justify the multiplier's use in this manner.
As a second basis for his dissent, Judge Casanueva concluded that the statutory language of section 768.79 does not expressly provide judicial authority to use a multiplier.
Judge Casanueva wrote:
Without this express directive, the court lacks the authority to use a multiplier.
In subsection (1), where it created the statutory entitlement to an attorneys' fee, the legislature defined and limited the award of fees to those incurred within a specified period.
Fees are only awardable for services rendered between the date of filing an offer or demand that was subsequently rejected and the conclusion of the litigation.
The rejected demand or offer, the legislature decreed, was admissible only to pursue the statute's penalty provisions.
The fees for legal services performed during this period were to be calculated in accordance with supreme court guidelines.
Rules 4-1.5(b) and (c) of the Rules Regulating the Florida Bar identify factors to be considered in determining a reasonable fee.
Nowhere in rule 4-1.5 is there a specific mention of a multiplier.
Attorneys' fees are authorized only by statute or contract.
Because a supreme court rule is neither, it cannot authorize a fee.
It is the legislature's task to enact substantive law, see TGI Friday's Inc. v. Dvorak, 663 So. 2d 606, 611 (Fla. 1995), and even though it created a substantive right to an attorney's fee calculated between two points in time, it did not create a substantive right to have that fee multiplied.
In addition to providing for a penalty or sanction in subsection (7), the legislature specifically granted a trial court the authority to disallow the entitlement to attorneys' fees where it concluded the offer was not made in good faith.
The interplay between the subsections evinces a clear legislative intent to penalize where appropriate and to provide a mechanism to deny a fee where the offer was not made in good faith.
That same clarity of expression could have been used to authorize a multiplier but was not. Pirelli Armstrong Tire, 752 So. 2d at 1278-79 (Casanueva, J., concurring in part and dissenting in part).