Today, in Massie v. Progressive Express Insurance Company, ____ So.3d ____ (Fla. 1st DCA November 17, 2009), the Circuit Court sitting in its appellate capacity reversed the trial judge’s order awarding a multiplier.  The Circuit Court reversed because the insured did not testify that she had difficulty securing counsel to represent her in the cause without a multiplier.   

The 1st DCA reversed and reinstated the multiplier.  The Court held that

expert testimony that a party would have difficulty securing counsel without the opportunity for a multiplier supposts a multiplier’s imposition.  Here, Petitioner presented such testimony, and the Circuit Court departed from the essential requirements of law by failing to apply a principle of law previously enunciated by this Court rather than that of our sister Fifth Disctrict Court of Appeal. 

The 5th DCA decision which the Court was referring to is Progressive Express Insurance Co. v. Schultz, 948 So.2d 1027 (Fla. 5th DCA 2007).  I was actually the fee expert in Schultz and have been regretting this holding for about 2 years now.  Hopefully, now that there is conflict between Schultz and Massie the Supreme Court will rule on this issue. 

A copy of the Massie decision can be downloaded by clicking here.