HAAG v. STATE DEPARTMENT OF INSURANCE (1997)

District Court of Appeal of Florida,First District.

John L. HAAG, Jr., and Roy L. Levine, individually and as representatives of the policyholders of Guarantee Security Life Insurance Company, Appellants, v. STATE of Florida, DEPARTMENT OF INSURANCE, as Receiver of Guarantee Security Life Insurance Company, Appellee.
MILLER FAUCHER CHERTOW CAFFERTY AND WEXLER; Kent Ridge & Crawford; Lefrak & Holman; Matthew F. Berry; Webb, O'Quinn & Murphree, P.A.; Zwerling, Schachter, Zwerling & Koppell, L.L.P.; Lieff, Cabraser, Heimann & Bernstein; Goodkind Labaton Rudoff & Sucharow LLP, Appellants, v. STATE of Florida, DEPARTMENT OF INSURANCE, as Receiver of Guarantee Security Life Insurance Company, Appellee.
MILLER FAUCHER CHERTOW CAFFERTY AND WEXLER; Kent Ridge & Crawford; Lefrak & Holman; Matthew F. Berry; Webb, O'Quinn & Murphree, P.A.; Zwerling, Schachter, Zwerling & Koppell, L.L.P.; Lieff, Cabraser, Heimann & Bernstein; Goodkind Labaton Rudoff & Sucharow LLP; and John J. Haag, Jr. and Roy L. Levine, individually and as representatives of the policyholders of Guarantee Security Life Insurance Company, Appellants, v. STATE of Florida, DEPARTMENT OF INSURANCE, as Receiver of Guarantee Security Life Insurance Company, Appellee.

Nos. 96-2682, 96-2683 and 96-2885.

Decided: August 07, 1997

Keith E. Hope of Keith E. Hope, P.A., Key Biscayne; J. Dennis Faucher and Bryan L. Clobes of Miller Faucher Chertow Cafferty and Wexler, Philadelphia, PA; Robert E. O'Quinn, Jr. of Webb O'Quinn & Murphree, P.A., Jacksonville; Matthew F. Berry, Clear Lake, IA; George E. Ridge of Kent Ridge & Crawford, Jacksonville; Richard M. HeimannofLieff, Cabraser, Heimann & Bernstein, San Francisco, CA; Ira Schocket and Lawrence A. Sucharow of Goodkind Labaton Rudoff & Sucharow LLP, New York City; Robert S. Schachter of Zwerling, Schachter, Zwerling & Koppell L.L.P., New York City; and Thomas A. Holman of Lefrak & Holman, New York City, for Appellants. Timothy W. Volpe, Stephen D. Busey and Leslie A. Wickes of Smith, Hulsey & Busey, Jacksonville; Joseph L. Rebak of Tew & Beasley, Miami; W. Carlisle Herbert of Hopkins & Sutter, Chicago, IL; Charles B. Lembcke, of Datz, Jacobson & Lembcke, Jacksonville; Robert A. Weiss of Parker, Hudson, Rainer & Dobbs, Tallahassee; Robert R. Feagin, III of Holland & Knight, Tallahassee; Dennis K. Threadgill, Florida Department of Insurance, Tallahassee; Herschel E. Sparks, Jr. of Hughes Hubbard & Reed, Miami; Mary Beth Perry of Guarantee Security Life Insurance Company, Jacksonville; Thomas M. Baumer of Baumer, Bradford & Walters, Jacksonville; Richard A. Cirillo of Rogers & Wells, New York City; Robert E. Warren of Taylor, Mosely & Joyner, Jacksonville; David M. Wells of Mahoney, Adams & Criser, Jacksonville; W. Donald Cox of Fowler, White, Gillen & Boggs, Clearwater; Robert J. Winick, Jacksonville; Lewis F. Murphy of Steel, Hector & Davis, Miami; Charles A. Stillman of Stillman, Friedman & Shaw, New York City, for Appellee.

Appellants, John L. Haag, Jr., Roy L. Levine and their attorneys (collectively, “Haag”), challenge the trial court's orders (1) approving attorney's fee agreements entered into between appellee, the Department of Insurance, and two law firms, Smith Hulsey & Busey, and Tew & Beasley, and (2) denying appellants' motion for attorney's fees and costs. We affirm the first order, because the trial court properly approved the fee agreements pursuant to section 631.141(6), Florida Statutes (1995). We affirm the second order without comment because we conclude that, based on the partial record we have before us, it is supported by competent, substantial evidence.

Contrary to Haag's contention on appeal regarding the first order, this case is not controlled by Kuhnlein v. Department of Revenue, 662 So.2d 309 (Fla.1995). There, the court stated that a fee agreement between the named plaintiffs and their attorneys in a common-fund class action cannot bind the remaining members of the class, and that in such cases the court must instead use the lodestar method to determine attorney's fees. The case at bar, in contrast, is controlled by section 631.141(6), which provides that the Department of Insurance acting as a receiver in a chapter 631 delinquency proceeding shall enter into a fee agreement with its attorneys, with such compensation to be paid out of the insurer's funds or assets, subject to the approval of the court. The court's approval means that it is required to determine the reasonableness of the fee agreement, which the court below did following an evidentiary hearing. Kuhnlein cannot be read to require a trial court to disregard an agreement required by section 631.141(6) and adopt instead the lodestar approach.

AFFIRMED.

PER CURIAM.

ERVIN, KAHN and BENTON, JJ., concur.

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