Bankers Life and Casualty Company v. Benjamin Borew, Individually, etc., et al.,

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
BANKERS LIFE AND CASUALTY COMPANY,
Appellant,
v.
BENJAMIN BOREW, et al.,
Appellees.
No. 4D2024-1296
[March 4, 2026]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Nancy F. Alley, Judge; L.T. Case No. 17000971CAAXMX.
Matthew J. Conigliaro of Carlton Fields, P.A., Tampa, for appellant.
Kara Rockenbach Link of Link & Rockenbach, PA, West Palm Beach,
for appellees.
KUNTZ , C.J.
Bankers Life and Casualty Company appeals the circuit court’s order
awarding attorney’s fees to Benjamin Borew and Rose Ann Borew Talbot,
as personal representative of the Estate of Josephine Borew. 	The circuit
court awarded Benjamin and Josephine’s attorney’s fees of $1,257,243.75
and $1,311,634.38, respectively, for a combined total of $2,568,878.13.
Bankers Life raises two issues on appeal. 	First, Bankers Life argues the
Borews failed to present evidence justifying the imposition of a multiplier.
Second, Bankers Life argues the circuit court erred when it awarded an
hourly rate that exceeded the rate the attorney and client agreed was
reasonable. 	We agree on both issues and reverse.
i. 	Background
The Borews contracted with Bankers Life for long-term care benefits.
Under the insurance policy, they became eligible for up to $1,470 weekly
in unlimited long-term care benefits for home-based attendant care. Years
later, Bankers Life suddenly stopped paying the Borews, accusing them of
fraudulent billing. 	Banker’s Life filed a complaint seeking over $700,000
from the Borews for fraud, unjust enrichment, and a declaratory action.

The Borews retained David Stone, P.A., to represent them in the defense
and counterclaim of the lawsuit. 	They also signed a similarly worded
retainer agreement with Michael Rosen, P.A. to represent Ms. Borew
because 	Attorney 	Stone 	believed 	a 	conflict 	prevented 	him 	from
representing both parties. 	Attorney Stone’s retainer agreement included
the following language:
Attorney’s Fees
As compensation for professional services, Clients agree to
pay the Firm for legal services at $450.00 per hour for attorney
rates and $100.00 per hour for paralegal rates. 	Clients agree
that these rates are fair and reasonable. . . .
Contingency Retainer for Legal Services
Clients have advised the Firm that they are unable to pay the
Firm for legal fees associated with this litigation. Accordingly,
the Firm hereby agrees to represent Clients on a contingency
basis. 	The Firm agrees to accept Court awarded Attorney's
Fees 	as 	its 	sole 	compensation 	if 	Clients 	prevail 	in 	this
litigation. 	The Firm agrees not to charge Clients for legal
services if Clients do not prevail in this litigation.
After a seven-day trial, the jury found for the Borews. 	Banker’s Life
was not awarded any damages. The jury awarded Mr. Borew $455,857 for
past damages and $229,320 for the present value of future damages. Ms.
Borew was awarded $240,786.
Bankers Life stipulated to the Borews’ entitlement to attorney’s fees,
and the circuit court held an evidentiary hearing to determine the amount
of fees to award.
Attorney Stone testified that his typical hourly rate was $650 per hour,
but he agreed to work for the Borews at a reduced hourly rate. 	He
explained that the case was risky because Bankers Life had conducted
surveillance on the Borews. 	Attorney Stone testified that the surveillance
videos showed the Borews walking and getting in and out of their vehicle.
Mr. Borew was shown standing, pumping gas, and riding an ATV on his
property. 	Similarly, Attorney Rosen testified that Bankers Life took fraud
allegations very seriously.
The Borews’ attorney’s fee expert witness described his own extensive
professional history, including his board certifications in civil trial law and

business litigation. 	The expert testified that Attorney Rosen’s hourly rate
was reasonable. 	He also testified:
At the outset of the representation of this case, it is clear to
me that an assessment of the risks involved would have led to
a conclusion that it was less likely than not that the Borews
would 	have 	prevailed 	in 	this 	case. 	Based 	upon 	the
information available at that time, any experienced litigator
would have considered that it was less likely than not, in
taking on this litigation, that your clients would prevail and
that, therefore, you would be unable to recover a fee.
Considering the attorneys’ experience, the case’s complexity, and the
likelihood of losing, the expert also testified that he believed a contingency
fee multiplier of 2.5 was appropriate.
The circuit court arrived at a $525 hourly rate for Attorney Stone and
Attorney Rosen, with a contingency fee multiplier of 2.5. 	Based on that
decision, the circuit court awarded attorney’s fees of $1,257,243.75 and
$1,311,634.38, respectively, for a combined total of $2,568,878.13
ii. 	Analysis
a. 	The Circuit Court Erred in Awarding a
Contingency Fee Multiplier
We first address Bankers Life’s argument that the circuit court erred
using a contingency fee multiplier, because the Borews failed to present
evidence 	justifying 	a 	multiplier’s 	application. 	An 	order 	applying 	a
multiplier to an award of attorney's fees is reviewed for an abuse of
discretion. 	Nationstar Mortg. LLC v. Faramarz, 331 So. 3d 738, 744 (Fla.
4th DCA 2021).
The Florida Supreme Court adopted the federal lodestar method for
determining court-awarded fees. 	Fla. Patient’s Comp. Fund v. Rowe, 472
So. 2d 1145, 1146 (Fla. 1985), holding modified by Standard Guar. Ins. v.
Quanstrom, 555 So. 2d 828 (Fla. 1990). 	“[C]ourts must multiply the
number of hours reasonably expended by a reasonable hourly rate to
reach the lodestar amount.” 	Black Point Assets, Inc. v. Ventures Tr. 2013-
I-H-R by MCM Cap. Partners, LLC, 236 So. 3d 1134, 1138 (Fla. 2d DCA
2018). 	The court can then adjust the lodestar amount based on a
contingency risk factor. 	Joyce v. Federated Nat’l Ins., 228 So. 3d 1122,
1124 (Fla. 2017).

But “the application of a [contingency] multiplier is not mandatory
when the prevailing party’s counsel is employed on a contingency fee
basis.” 	Askowitz v. Susan Feuer Interior Design, Inc., 563 So. 2d 752, 754
(Fla. 3d DCA 1990). 	When deciding whether a contingency fee multiplier
is appropriate, a court asks:
(1) whether the relevant market requires a contingency fee
multiplier 	to 	obtain 	competent 	counsel; 	(2) 	whether 	the
attorney was able to mitigate the risk of nonpayment in any
way; and (3) whether any of the factors set forth in Rowe are
applicable, 	especially, 	the 	amount 	involved, 	the 	results
obtained, 	and 	the 	type 	of 	fee 	arrangement 	between 	the
attorney and his client.
Sumner Grp., Inc. v. M.C. Distributec, Inc., 949 So. 2d 1205, 1207 (Fla. 4th
DCA 	2007) 	(quoting 	Quanstrom, 	555 	So. 	2d 	at 	834). 	“Importantly,
‘evidence 	of 	each 	of 	these 	factors 	must 	be 	presented 	to 	justify 	the
utilization of a multiplier.’” 	Certain Underwriters at Lloyd’s London v.
Candelaria, 339 So. 3d 463, 470 (Fla. 3d DCA 2022) (quoting Quanstrom,
555 So. 2d at 834).
Further, “[i]f there is no evidence that the relevant market required a
contingency fee multiplier to obtain competent counsel, then a multiplier
should not be awarded.” 	Universal Prop. & Cas. Ins. v. Deshpande, 314
So. 3d 416, 421 (Fla. 3d DCA 2020) (quoting USAA Cas. Ins. v. Prime Care
Chiropractic Enters., P.A., 93 So. 3d 345, 347 (Fla. 2d DCA 2012)). 	“The
purpose of the relevant market factor is ‘to assess, not just whether there
are 	attorneys 	in 	any 	given 	area, 	but 	specifically 	whether 	there 	are
attorneys in the relevant market who both have the skills to handle the
case effectively and who would have taken the case absent the availability
of a contingency fee multiplier.’” 	Impex Caribe Corp. v. Levin, 338 So. 3d
13, 15 (Fla. 3d DCA 2022) (quoting Joyce, 228 So. 3d at 1135).
So, to award the multiplier, the record evidence must show “that
without 	risk-enhancement[,] 	plaintiff 	would 	have 	faced 	substantial
difficulties in finding counsel in the local or other relevant market.” 	Sun
Bank of Ocala v. Ford, 	564 	So. 	2d 	1078, 	1079 	(Fla. 	1990) 	(quoting
Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S.
711, 731 (1987)).
One, but not both, of the attorneys testified that he understood the
Borews had trouble finding counsel. 	But the attorney did not describe
those difficulties. 	The Borews’ expert testified that it was likely Bankers
Life would prevail. 	He testified that the hourly rate was reasonable. 	He

added that the hours expended were reasonable. 	He did not testify that
the Borews would not have obtained counsel absent the availability of a
risk multiplier. 	No one did, and “[a]warding a contingency fee multiplier
in the absence of 	testimony regarding the relevant market is error.”
Deutsche Bank Nat’l Tr. Co. as Tr. for Morgan Stanley Home Equity Loan Tr.
2007-1 v. Pereira, 352 So. 3d 3, 4 (Fla. 4th DCA 2022). So, we reverse the
circuit court’s order awarding a contingency fee multiplier.
b. 	The Circuit Court Erred in Awarding An Hourly Rate in
Excess of the Contractually-Agreed Amount
Next, Bankers Life argues the circuit court awarded an hourly rate in
excess of what the Borews agreed was reasonable. 	As noted above,
“[c]ourts must multiply the number of hours reasonably expended by a
reasonable hourly rate to reach the lodestar amount.” Black Point Assets,
Inc., 236 So. 3d at 1138.
“Fee agreements between attorneys and clients are governed by the law
of contracts.” 	Moore v. State Farm Mut. Auto. Ins., 916 So. 2d 871, 875
(Fla. 2d DCA 2005).
The Florida Supreme Court effectively “established a cap on . . .
[attorney’s] fee[s] by holding that in no case should the court-awarded fee
exceed 	the 	fee 	agreement 	reached 	by 	the 	attorney 	and 	[the] 	client.”
Quanstrom, 555 So. 2d at 831 (citation modified). We have explained that
“a fee award cannot exceed the actual fee agreement or the amount for
which the client is in fact responsible.” 	Nelson v. Marine Grp. of Palm
Beach, Inc., 677 So. 2d 998, 1000 (Fla. 4th DCA 1996). 	This cap on fees
applies to both contingency and hourly fee agreements. 	First Baptist
Church of Cape Coral, Fla., Inc. v. Compass Const., Inc., 115 So. 3d 978,
981 (Fla. 2013).
In response to this cap, attorneys began including “alternative fee
recovery clauses” in their retainer agreements. 	Id. 	The alternative fee
recovery clause allowed the attorney to receive the greater amount of “(i) a
specified 	fee 	if 	the 	fee 	is 	paid 	by 	the client, 	or 	(ii) 	a 	court-awarded
reasonable fee if the fee is paid by a third-party pursuant to a fee-shifting
provision.” 	Id.; see also Miami Child.’s Hosp. v. Tamayo, 529 So. 2d 667,
667–68 (Fla. 1988) (upholding a similar fee agreement that provided for
the greater of a contingency fee or court-awarded reasonable fees).
The fee agreements between the Borews and their counsel expressly set
the attorneys’ hourly rate at $450 and the paralegals’ hourly rate at $100.
The agreements did not contain alternative fee recovery clauses. 	Of

course, the Borews insist such clauses existed. 	We agree with them that
the alternative fee recovery clause need not use specific words, but it must
indicate that the parties anticipate a fee award exceeding the agreed upon
amount. In this case, the agreements did not do so. As a result, we reverse
the 	circuit 	court’s 	order 	and 	remand 	for 	entry 	of 	an 	award 	that 	is
consistent with the contractually-agreed fee amount.
iii. 	Conclusion
We reverse the circuit court’s fee award and remand for entry of an
award that does not include a contingency fee multiplier and is limited to
the hourly rates stated in the fee agreements that the Borews signed.
Reversed and remanded.
C IKLIN and KLINGENSMITH, JJ., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.