3d DCA Watch — Time To Wallow In the Mire Edition

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Hi kiddies it’s a cool clear Wednesday and inside the concrete bunker by the highway our favorite judicial scribes are gathering around the coffee-maker, wearing an extra layer and wool socks beneath their resplendent robes, issuing PCAs like little kindlings thrown onto a fire. Try now we could only lose, and our love become a funeral pyre….Try to set the night on fiiiirrrrrree!Sorry, got a little distracted there.Ok, let’s get right to it —

Trumbull Ins. v. Walentarski:

You schmuck. Oy are you a schmuck. Did I say you’re a schmuck?Listen close — the judge wants to pay you. You have won. The insurer is on the hook.Don’t make it so hard by not keeping any records whatsoever and engaging in colloquy with the court like this:

THE COURT: Do you have some kind of work sheet when you went through and reconstructed it [the time spent on the PIP claim]?WOLENTARSKI’S COUNSEL: No, I didn’t do that either. I go through every page of the file, and I just add it up.INSURER’S COUNSEL: Did you bring any of those sheets of how you added it up and invoices of saying on this day I did this and I am estimating .2?WOLENTARSKI’S COUNSEL: No. I just said I don’t do a worksheet. I add it up.INSURER’S COUNSEL: Where are those sheets?WOLENTARSKI’S COUNSEL: I told you—sorry we are not understanding each other. I told you I go through page by page and I add up the time. I didn’t do it on a work sheet.INSURER’S COUNSEL: Where are those sheets?WOLENTARSKI’S COUNSEL: I don’t do a sheet.INSURER’S COUNSEL: I thought you said you added up the time?WOLENTARSKI’S COUNSEL: I did.INSURER’S COUNSEL: Where is that?

WOLENTARSKI’S COUNSEL: In my mind. I added it up page by page.

ARRRGHH!The expert was not much better. The issue had to do with whether or not time spent pursuing the PIP claim related back to the underlying case. Here’s what Judge Wells concluded:

In this case, counsel introduced no written or oral reconstruction of the time that he expended on the PIP claim. Nor did he introduce any other evidence to describe or detail the pleadings, discovery, research, hearings, or other services rendered in litigating that PIP claim. Rather, the proof submitted was no more than a guesstimate. This is legally insufficient. See Brake, 736 So. 2d at 748 (stating that numbers “plucked from the air and standing alone will not support a fee award”).

His expert’s testimony was of even less evidentiary value than counsel’s testimony. After contradicting counsel’s testimony that the time spent on the PIP claim could be segregated from that spent on the negligence/uninsured/underinsured motorist claims, the expert went on to testify that counsel was entitled to be compensated for all of the time the file showed had been spent on all of the claims. He justified this conclusion by including in his calculation what he believed to be the amount of time counsel must have spent on telephone conversations and other matters not documented in his files. This is not fact based opinion, it is pure speculation.

PIP litigation — not for the faint of heart, right?