IN THE SUPREME COURT OF FLORIDA Case No. 04-184 by niusheng11

VIEWS: 6 PAGES: 21

									                    IN THE SUPREME COURT OF FLORIDA
                              Case No. 04-184

NATIONWIDE MUTUAL FIRE
INSURANCE COMPANY,

      Petitioner,

vs.

PAMELA HOLIDAY and LEONARD
SHEALEY,

      Respondents.
                                   /

          __________________________________________________

                      BRIEF OF AMICUS CURIAE
             FLORIDA DEFENSE LAWYERS ASSOCIATION
                     IN SUPPORT OF PETITIONER
          __________________________________________________




TRACY RAFFLES GUNN                     MATTHEW J. CONIGLIARO
Florida Bar No. 984371                 Florida Bar No. 63525
FOWLER WHITE                           CARLTON FIELDS, P.A.
 BOGGS BANKER, P.A.                    200 Central Avenue, Suite 2300
P.O. Box 1438                          St. Petersburg, FL 33701
Tampa, FL 33601                        (727) 821-7000 (tel)
(813) 228-7411 (tel)                   (727) 822-3768 (fax)
(813) 229-8313 (fax)                   Attorneys for Amicus Curiae
Chair, FDLA Amicus Committee           Florida Defense Lawyers Association
                                     TABLE OF CONTENTS

TABLE OF AUTHORITIES............................................................................... ii

INTEREST OF THE AMICUS CURIAE ............................................................ 1

SUMMARY OF ARGUMENT ........................................................................... 2

ARGUMENT ..................................................................................................... 3

I.      WHETHER TO PERMIT A MULTIPLIER TURNS ON STRICTLY
        CONSTRUED LEGISLATIVE INTENT................................................... 4

II.     THE INSURANCE CODE DOES NOT SUPPORT A
        LEGISLATIVE INTENT TO PERMIT MULTIPLIERS UNDER
        SECTION 627.428.................................................................................... 7

        A.       THE STATUTE'S HISTORY AND PURPOSE................................ 8

        B.       THE EFFECT OF COMPREHENSIVE REGULATION................ 12

CONCLUSION................................................................................................ 15

CERTIFICATE OF SERVICE.......................................................................... 16

CERTIFICATE OF COMPLIANCE ................................................................. 16




                                                   i
                                   TABLE OF AUTHORITIES


CASES

Armstrong v. Harris, 773 So. 2d 7 (Fla. 2000)...................................................... 3

Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29 (Fla. 2000) ........................... 14

Belch v. Manning, 55 Fla. 229, 46 So. 91 (Fla. 1908)........................................... 7

Bohlinger v. Higginbotham, 70 So. 2d 911, Fla. 1954) ....................................... 10

Collins v. Wilkins, 664 So. 2d 14 (Fla. 4th DCA 1995) ........................................ 5

Daniels v. Florida Dep't of Health, 2005 WL 549896,
      No. SC04-230 (Fla. Mar. 10, 2005)............................................................ 6

Department of Legal Affairs v. Bradenton Group, Inc.,
     727 So. 2d 199 (Fla. 1998) ...................................................................... 12

Doyle-Vallery v. Aranibar, 838 So. 2d 1198 (Fla. 2d DCA 2003) ........................ 5

Equitable Life Assur. Soc. v. Nichols, 84 So. 2d 500 (Fla. 1956) ....................... 10

Feller v. Equitable Life Assur. Soc., 57 So. 2d 581 (Fla. 1952) ......................... 10

Florida Birth-Related Neurological Injury Comp. Ass'n v. Carreras,
      633 So. 2d 1103 (Fla. 3d DCA 1994)......................................................... 6

Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145
      (Fla. 1985).......................................................................................2, 9, 11

General Ins. Co. v. Roth, 233 So. 2d 662 (Fla. 3d DCA 1970)............................ 10

Hechtman v. Nations Title Ins., 840 So. 2d 993 (Fla. 2003) .................................. 4

Holiday v. Nationwide Mutual Fire Ins. Co., 864 So. 2d 1215
      (Fla. 5th DCA 2004) ................................................................................. 3


                                                  ii
Holly v. Auld, 450 So. 2d 217 (Fla. 1984) ........................................................... 8

Island Hoppers, Ltd. v. Keith, 820 So. 2d 967
       (Fla. 4th DCA 2002) ................................................................................. 5

Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000) .......................................... 10

Joshua v. City of Gainesville, 768 So. 2d 432 (Fla. 2000) .................................... 7

Pirelli Armstrong Tire Corp. v. Jensen, 752 So. 2d 1275
        (Fla. 2d DCA 2000) .................................................................................. 5

Roberts v. Carter, 350 So. 2d 78, (Fla. 1977) ....................................................... 6

Sarkis v. Allstate Ins. Co., 863 So. 2d 210 (Fla. 2003)....................... 4, 5, 6, 11, 12

Schick v. Department of Agriculture & Consumer Servs.,
      599 So. 2d 641 (Fla. 1992) ........................................................................ 5

Standard Guaranty Ins. Co. v. Quanstrom, 555 So. 2d 828
      (Fla. 1990)................................................................................................ 7

State v. Webb, 398 So. 2d 820, 824 (Fla. 1981) ................................................... 4

Stewart Select Cars, Inc. v. Moore, 619 So. 2d 1037
     (Fla. 4th DCA 1993) ................................................................................. 6

Tetrault v. Fairchild, 799 So. 2d 226 (Fla. 5th DCA 2001) ................................... 5

Tillis v. Liverpool & London & Globe Ins. Co., 46 Fla. 268
       35 So. 171 (1903) ..................................................................................... 9


STATUTES AND LAWS

Ch. 59-205, § 477, Laws of Fla. (1959) .............................................................. 9

Ch. 4173, § 101, Laws of Fla. (1893) .................................................................. 9

Comp. Gen. Laws of Fla., § 6220 (1927) ........................................................... 9

                                                   iii
Gen. St. of Fla., § 2774 (1906) ........................................................................... 9

Laws of Fla., ch. 4173, § 1-2 (1983) ................................................................... 9

Laws of Fla., ch. 7295, §§ 1-2 (1917) ................................................................ 9

Rev. Gen. St. of Fla., § 4263 (1920) ................................................................... 9

§ 1704, General Statutes (1906) .......................................................................... 7

§ 624.155 Fla. Stat............................................................................................ 13

§ 627.426, Fla. Stat........................................................................................... 13

§ 627.427 Florida Insurance Code ...................................................................... 8

§ 627.428, Fla. Stat.....................................................................................passim

§ 768.79, Fla. Stat. ......................................................................................... 4, 5




                                                   iv
                     INTEREST OF THE AMICUS CURIAE

      The Florida Defense Lawyers Association (“FDLA”) is a statewide

organization of attorneys whose primary practice consists of defending civil

matters. FDLA's membership consists of over 1000 attorneys.

      Among FDLA's goals is to promote a level playing field in civil litigation.

FDLA's members have extensive experience in civil litigation, and through amicus

briefs such as this, FDLA hopes to share its experience with the Court and offer

meaningful insights on important legal issues.

      FDLA has actively participated in amicus briefing in numerous appellate

cases with statewide impact on tort and insurance issues. This is such a case, and

FDLA believes it can offer the Court meaningful insight on the narrow issue of the

legislative intent surrounding section 627.428. Accordingly, FDLA has sought

leave to file this amicus brief.




                                     1
                          SUMMARY OF ARGUMENT

      Whether a contingency risk multiplier is authorized for use with section

627.428 is ultimately a question of legislative intent. The Court's examination

should be through a strict scrutiny analysis.

      The insurance fee-shifting provision has been codified since 1893, nearly a

century before this Court authorized contingency risk multipliers in Florida

Patient's Compensation Fund v. Rowe, 472 So. 2d 1145, 1149 (Fla. 1985). The

purposes of the statute, as announced by this Court, are to discourage insurers from

challenging claims by insureds, to punish insurers for withholding policy proceeds

from valid claims, and to level the playing field to prevent insurers from taking

advantage of their usual economic superiority. By comparison, the purposes of a

multiplier are to encourage litigation and reward attorneys for taking plaintiffs'

cases with less than clear chances of victory.          Because these purposes are

incompatible, legislative authorization for a multiplier cannot be inferred.

      Legislative authorization for a multiplier also cannot be inferred here

because section 627.428 exists within the regulatory framework of the Florida

Insurance Code. The code makes numerous attempts to regulate how insureds and

insurers interact, leveling the playing field and giving insureds advantages at

various points. In the midst of such a thorough regulatory scheme, and under a

strict scrutiny analysis, an intent to authorize a multiplier should not be inferred.


                                        2
                                  ARGUMENT

      The proceedings in this case are based on the following question certified to

be of great public importance by the Fifth District Court of Appeal:

             IN LIGHT OF THE SUPREME COURT’S DECISION
             IN SARKIS, MAY A MULTIPLIER BE APPLIED TO
             ENHANCE AN AWARD OF ATTORNEY’S FEES
             GRANTED UNDER A FEE-SHIFTING STATUTE
             SUCH AS SECTION 627.428, FLORIDA STATUTES
             (2002)?

Holiday v. Nationwide Mutual Fire Ins. Co., 864 So. 2d 1215, 1220-1221 (Fla. 5th

DCA 2004). FDLA urges that the question be answered in the negative with

specific respect to section 627.428, Florida Statutes. As we show in the following

discussion, this Court's examination should be guided by legislative intent, strictly

construed, and once the statute and the overall Insurance Code are examined, it is

plain that nothing in that code evidences an intent to permit multip liers in

contingent fee cases. To the contrary, the purposes of fee-shifting under section

627.428 are contrary to the purposes of using a multiplier.

      The issues before the Court are pure questions of law. Accordingly, this

Court's review is de novo. Armstrong v. Harris, 773 So. 2d 7, 11 (Fla. 2000)

("[T]he standard of review for a pure question of law is de novo.").




                                      3
I.    WHETHER TO PERMIT A MULTIPLIER TURNS ON STRICTLY
      CONSTRUED LEGISLATIVE INTENT.

      Among the most firmly rooted concepts of statutory interpretation is that

legislative intent is the pole star by which a court's interpretation must be guided.

E.g., Hechtman v. Nations Title Ins., 840 So. 2d 993, 996 (Fla. 2003); State v.

Webb, 398 So. 2d 820, 824 (Fla. 1981). This maxim is borne out by case law on

the issue of whether a fee-shifting statute permits the use of a contingency risk

multiplier.

      Recently, in Sarkis v. Allstate Ins. Co., 863 So. 2d 210 (Fla. 2003), the Court

examined the propriety of utilizing a multiplier when computing fees under the

fee-shifting provisions of section 768.79, Florida Statutes -- the offer of judgment

statute. Though the Court was divided in its conclusion, the Court was united with

regard to the significance of legislative intent. The majority held that the use of a

multiplier must be consistent with the purpose of the fee-authorizing statute or rule

at issue, and finding an inconsistency between the purpose of section 768.79 and

the purpose of multipliers in general, held no multiplier could apply. See id. at

218-23. The dissenting opinion also focused on legislative intent, but it concluded

that the express language of section 768.79 permitted consideration of a multiplier.

See id. at 224-26 (Pariente, C.J., dissenting).

      In decisions leading up to this Court's review in Sarkis, numerous judges

expressed views on whether the legislature authorized use of a multiplier under

                                        4
section 768.79. For instance, in Collins v. Wilkins, 664 So. 2d 14, 15 (Fla. 4th

DCA 1995), and Island Hoppers, Ltd. v. Keith, 820 So. 2d 967, 973-75 (Fla. 4th

DCA 2002), the Fourth District expressly held that the legislature authorized trial

courts to utilize multipliers under section 768.79. Judge Casaneuva reached the

opposite conclusion in his partial dissent in Pirelli Armstrong Tire Corp. v. Jensen,

752 So. 2d 1275, 1278-79 (Fla. 2d DCA 2000), and would have held that the

substantive right to application of a multiplier could only have come, but had not,

from the legislature. Judge Altenbernd reached a similar conclusion -- that the

legislature had not authorized use of a multiplier -- in his concurrence in Doyle-

Vallery v. Aranibar, 838 So. 2d 1198, 1198-99 (Fla. 2d DCA 2003). Finally, Judge

Harris's concurring opinion in Tetrault v. Fairchild, 799 So. 2d 226, 235 (Fla. 5th

DCA 2001), found the use of a multiplier contrary to the legislature's intent

underlying section 768.79. The majority decision in Sarkis examined all of these

views before concluding that use of a multiplier under section 768.79 was not

permitted.

      Over ten years prior to Sarkis, this Court confirmed the significance of

legislative intent to the use of a multiplier by holding that where the legislature

specifically sets forth the criteria it deems relevant to calculation of a reasonable

fee, then only the enumerated factors may be considered. Schick v. Department of

Agriculture & Consumer Servs., 599 So. 2d 641, 644 (Fla. 1992). Schick was


                                      5
followed by district court decisions holding multipliers inappropriate under fee-

                                       h
shifting statutes that listed criteria t at could not be read to include multipliers.

E.g., Florida Birth-Related Neurological Injury Comp. Ass'n v. Carreras, 633 So.

2d 1103, 1106 (Fla. 3d DCA 1994) (construing § 766.31); Stewart Select Cars, Inc.

v. Moore, 619 So. 2d 1037, 1038 (Fla. 4th DCA 1993) (construing § 501.215).

      The foregoing authorities confirm that, as with statutory construction

involving any other area, legislative intent is paramount and must be examined to

decide whether a particular fee-shifting statute permits consideration of a

multiplier. See also Daniels v. Florida Dep't of Health, 2005 WL 549896, No.

SC04-230 (Fla. Mar. 10, 2005) (holding "[i]n construing a statute we are to give

effect to the Legislature's intent" in connection with attorney's fees provision).

Thus, whether section 627.728 permits use of a multiplier must be decided based

on whether the legislature can be said to have authorized such use.

      In this regard, it remains only to note that because fee-shifting statutes are in

derogation of the common law, and because statutes in derogation of the common

law are strictly construed, the Court's inquiry here is to be one using strict scrutiny.

Roberts v. Carter, 350 So. 2d 78, 78 (Fla. 1977) (construing § 627.428); see also

Daniels, 2005 WL 549896, No. SC04-230 (Fla. Mar. 10, 2005) ("Because statutes

providing for attorney's fees are in abrogation of the common law, such statutes are

to be strictly construed."); Sarkis, 863 So. 2d at 223 ("[W]e have recognized that


                                        6
statutory authorization for attorney fees is to be strictly construed."); see generally

Belch v. Manning, 55 Fla. 229, 46 So. 91 (Fla. 1908) ("[T]he provisions of said

section 1704 of the General Statutes of 1906 . . . are in derogration of the common

law . . . and must, therefore, be construed strictly and confined to causes clearly

within its terms.").

II.   THE INSURANCE CODE DOES NOT SUPPORT A LEGISLATIVE
      INTENT TO PERMIT MULTIPLIERS UNDER SECTION 627.428.

      At the outset of a strict scrutiny examination into the legislative intent

surrounding section 627.428, it is significant to point out that this Court has never

undertaken such an analysis with regard to multipliers and this particular statute.

While the Court's seminal decision on multipliers in Standard Guaranty Ins. Co. v.

Quanstrom, 555 So. 2d 828 (Fla. 1990), involved section 627.428, nowhere in that

case did the Court attempt to analyze the statute. Rather, the Court simply treated

section 627.428 generally as a statute awarding fees in a "tort and contract"

category of statutes, without discussing the merits of inferring legislative intent to

authorize use of a multiplier. See id. at 833-35. It is not until the instant case that

the Court has been confronted with the need to examine whether the legislature

intended section 627.428 to authorize fee-shifting with the potential use of a

contingency risk multiplier.

      When attempting to discern the legislature's intent, the proper starting point

is the statute's text. Joshua v. City of Gainesville, 768 So. 2d 432, 435 (Fla. 2000);

                                       7
Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984). In the case of section 627.428,

nothing in the statute expressly references a multiplier or the nature of the fee

contract at issue. Accordingly, if an authorization for a multiplier is to be found at

all, it must emanate from the implications of this fee-shifting statute, or the Florida

Insurance Code as a whole. However, when the Insurance Code is examined and

section 627.428 is seen in its historical context, it becomes apparent that the

purpose of this fee-shifting provision is to discourage, not encourage, litigation; to

charge insurers with the fees associated with wrongful denials of policy proceeds;

and to help assure that insurance companies do not use economic advantages

against insureds in litigation.   Under these circumstances, a multiplier is not

appropriate.

               A.    THE STATUTE'S HISTORY AND PURPOSE

       Section 627.427 is part of the Florida Insurance Code.           See § 624.01

(defining the "Florida Insurance Code" as chapters 624-32, 634-636, 641-42, 648,

and 651 of the Florida Statutes). With limited exceptions, part IV of Chapter 627,

entitled "The Insurance Contract" generally governs all insurance policies issued in

Florida. See § 627.401 (defining scope of Part). Thus, the fee-shifting provisions

of section 627.428 generally apply, with limited exceptions, to all insurance

policies in this state.




                                       8
      This provision is not new. It has been found in Florida law since 1893,

nearly a century before this Court authorized multipliers in 1985. See Ch. 4173, at

101, Laws of Fla. (1893); Florida Patient's Compensation Fund v. Rowe, 472 So.

2d 1145, 1149 (Fla. 1985). The Court appears to have first discussed a predecessor

to the current statute in Tillis v. Liverpool & London & Globe Ins. Co., 46 Fla.

268, 35 So. 171 (1903), where the Court upheld the 1893 enactment against an

equal protection challenge.     The 1893 provision can be traced, always with

language rather similar to that used today, to section 627.428, Florida Statutes,

which was created when the legislature passed comprehensive insurance reform in

1959. See ch. 59-205, § 477, Laws of Fla. (1959); see also Comp. Gen. Laws of

Fla., § 6220 (1927); Rev. Gen. St. of Fla., § 4263 (1920); Ch. 7295, §§ 1-2, Laws

of Fla. (1917); Gen. St. of Fla., § 2774 (1906); Laws of Fla., ch. 4173, §§ 1-2

(1983).

      In 1952, this Court addressed section 625.08, the current statute's immediate

predecessor, and concluded that the purpose of the fee-shifting provision was to

discourage insurers from litigating coverage issues in Florida:

      This statute is a part of the public policy of the State of Florida and its
      purpose is to discourage the contesting of policies in Florida
      Courts and to reimburse successful plaintiffs reasonably for their
      outlays for attorney's fees when a suit is brought against them, or they
      are compelled to sue, in Florida Courts to enforce their contracts.




                                       9
Feller v. Equitable Life Assur. Soc., 57 So. 2d 581, 586 (Fla. 1952) (emphasis

added). See also General Ins. Co. v. Roth, 233 So. 2d 662, 664 (Fla. 3d DCA

1970) (same).

      The Court's decisions regarding former section 625.08 also established that

Florida's insurance fee-shifting provision has long been held to authorize "the

recovery of attorney's fees from the insurer only when the insurer has wrongfully

withheld payment of the proceeds of the policy." Equitable Life Assur. Soc. v.

Nichols, 84 So. 2d 500, 502 (Fla. 1956) (emphasis added); see also Bohlinger v.

Higginbotham, 70 So. 2d 911, 916 (Fla. 1954). The Court's decision in Ivey v.

Allstate Ins. Co., 774 So. 2d 679, 684 (Fla. 2000), confirmed that "wrongful" in

this context merely means an "incorrect denial of benefits," but the statute's point

of discouraging denials of claims remains plain.

      Indeed, Ivey added that a purpose of the current section 627.428 is to "level

the playing field so that the economic power of insurance companies is not so

overwhelming that injustice may be encouraged because people will not have the

necessary means to seek redress in the courts." Id. Thus, for decades, if not over a

century, this Court has confirmed the purposes of the fee-shifting insurance statute

to be to discourage insurers from challenging claims by insureds, to punish insurers

for withholding policy proceeds from valid claims, and to level the playing field to

prevent insurers from taking advantage of their usual economic superiority.


                                     10
      By comparison, the purpose of a multiplier is to encourage litigation and to

reward attorneys for taking plaintiffs' cases with less than clear chances of victory.

Thus, when this Court authorized the use of contingency risk multipliers in Florida

Patient's Compensation Fund v. Rowe, 472 So. 2d 1145, 1149 (Fla. 1985), the

Court explained that a multiplier is intended to "encourage plaintiffs to proceed

with well-founded malpractice claims that would otherwise be ignored because

they are not economically feasible under the contingent fee system." The lesser the

chance of victory, and the greater the risk of loss, the greater the multiplier. Rowe;

Quanstrom.

      In Quanstrom, this Court emphasized that the use of a multiplier must be

consistent with the purpose of the fee-authorizing statute. 555 So. 2d at 834. In

Sarkis, this Court rejected the use of a multiplier in the context of the offer of

judgment statute because the purpose of that fee-shifting statute was to sanction a

party for rejecting a reasonable settlement offer, and thus to discourage litigation.

863 So. 2d at 222-23.

      Section 627.428 does not present a situation where, as a matter of policy, the

legislature has adopted a fee-shifting statute to encourage litigants to bring

particular types of claims to advance a socially desirable outcome. Nor is this a

fee-shifting statute created to encourage particular types of litigation.         See

Quanstrom, 555 So. 2d at 833-34 (discussing such cases). Rather, the precise


                                      11
opposite is true. The purposes of this statute are to discourage litigation, to punish

insurers for contesting valid claims, and to level the playing field by preventing

insurers from taking economic advantage of insureds. As in Sarkis, the purpose of

the particular fee shift at issue here conflicts with the general purposes of

multipliers. Accordingly, as in Sarkis, use of a multiplier is not appropriate under

section 627.428, and no basis exists to imply the legislature's authorization for such

a multiplier.

                B.   THE EFFECT OF COMPREHENSIVE REGULATION

      As previously mentioned, section 627.428 is part of the Florida Insurance

Code, a multi-chapter omnibus effort by the Florida Legislature to regulate the

business of insurance in Florida. To determine whether the legislature implicitly

intended section 627.428 to permit contingency risk multipliers, that statute should

be examined as part of the larger Insurance Code.

      In particular, section 627.428 should be viewed alongside the many

provisions in the Insurance Code that not only level the playing field between

insureds and insurers but give insureds material advantages in litigation with

insurers. In light of these express advantages, no basis appears to infer that the

legislature implicitly intended section 627.428 to authorize the additional

advantage of a multiplier. See Department of Legal Affairs v. Bradenton Group,




                                      12
Inc., 727 So. 2d 199, 201 (Fla. 1998) (interpreting § 849.0931 by referencing

gambling offenses proscribed throughout chapter 849).

      For instance, section 627.426, Florida's Claims Administration Statute,

requires insurers to act promptly in asserting any rights or defenses to a claim by

an insured. The statute outlines procedures for timely notifying insureds of

coverage defenses and provides for waiver of such defenses if the statutory notice

requirements are not followed. Section 627.4137 requires an insurer to provide

information regarding and copies of not only its own policies but also other

polic ies known to the insurer, as well as potential defenses to the claimant's claim

and a declaration from the insurer's corporate officer, all within 30 days of

receiving a request for such information.

      Perhaps most significantly, section 624.155 permits persons to bring civil

remedies claims against insurers for numerous acts that the legislature has deemed

to constitute bad faith in the handling of insurance claims. The damages permitted

by bad faith claims, particularly where settlement opportunities are lost and an

excess judgment is entered, can be substantial. It bears emphasis that the bad faith

statute contains its own attorney's fees provision, section 624.155(4), and thus

whether contingency risk multipliers are appropriate under that statute is not at

issue here, and the issue here does not control whether contingency risk multipliers

are available under the bad faith statute.


                                       13
       In addition to numerous other statutes throughout the Insurance Code that

specifically govern, in extraordinary detail, the relationship between insurers and

insureds, section 627.428 exists in the context of various case law doctrines that

favor insureds in litigation with insurers. For instance, not only are all ambiguous

provisions in a policy construed against the insurer, but exclusions in an insurance

policy are construed even more strictly against the insurer than coverage clauses.

See, e.g., Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000).

       Ultimately, the Insurance Code makes a comprehensive effort to balance the

interests of Florida's insureds favorably against those of Florida's insurers, and the

code exists in the context of common law doctrines that provide advantages to

insureds in litigation. In the midst of such extensive regulation, there is no basis to

infer that the legislature implicitly intended to give insureds the additional benefit

of a contingency risk multiplier when they prevail against insurers. Such

modifications to the complex insurance scheme should come not from case law but

from the legislature itself.




                                       14
                                 CONCLUSION

      The Court should answer the certified question in the negative with respect

to section 627.428. The purposes of that provision are incompatible with the

purposes of a multiplier, and nothing shows a legislative intent to authorize a

multiplier under this statute.




                                         _________________________
                                         MATTHEW J. CONIGLIARO
                                         Florida Bar No. 63525
                                         CARLTON FIELDS, P.A.
                                         200 Central Avenue, Suite 2300
                                         St. Petersburg, FL 33701
                                         (727) 821-7000 (tel)
                                         (727) 822-3768 (fax)
                                         Attorneys for Amicus Curiae
                                         Florida Defense Lawyers Association




                                    15
                        CERTIFICATE OF SERVICE

      I hereby certify that on March 14, 2005, a copy of the foregoing was served

by U.S. Mail on Brandon S. Peters, Esq., and Randy E. Schimmelpfenning, Esq.,

20 North Orange Avenue, Suite 1600, Orlando, Florida 32801.


                                     ___________________________
                                         Matthew J. Conigliaro




                    CERTIFICATE OF COMPLIANCE
                   REGARDING TYPE SIZE AND STYLE

      I HEREBY FURTHER CERTIFY that the type size and style used

throughout Appellant’s Initial Brief is Times New Roman 14-Point Font.


                                     ___________________________
                                         Matthew J. Conigliaro




                                    16

								
To top