If attorney fees based on a percentage of damages are unreasonably low, should the court depart from the statutory percentage and award reasonable fees?  The court did so in Murray v. Mariner Health and Ace USA, No. SC07-244, 2008 Fla. LEXIS 2011 (Fla. Oct. 23, 2008).

     Petitioner, a nurse, sought workers compensation benefits, including attorney fees, after suffering injury.  The employer and its insurer denied benefits.  At an administrative hearing, $3,244.21 in benefits were awarded.  The Florida fee statute provided fees equal to 20 percent of the first $5000 of benefits secured.  Elsewhere, the statute granted the successful claimant "reasonable attorney fees" from the employer and insurer.  At a hearing on fees, evidence was presented that the prevailing rate in workers' compensation cases was established at $200 per hour.  Nevertheless, the hearing officer award fees of $684.84, or $8.11 per hour, under the statutory formula.

    On appeal, the Florida Supreme Court found an ambiguity because the statute called for "reasonable" attorney fees while simultaneously requiring use of a formula that could produce an unreasonable result.  The Court turned to rules of statutory construction.  Where two statutory provisions were in conflict, the specific provision controlled the general provision.  The provision awarding "reasonable attorney fees" was more specific and controlling.  Further, if the formula provision controlled, the reasonable fee provision would be rendered meaningless because the formula could result in adequate fees in some cases and excessive fees in other cases.

     Hawai`i has a fee shifting statute allowing the prevailing party in assumpsit cases to receive fees up to 25% of the judgment.  Haw. Rev. Stat. 607-14.  An insured, however, would likely seek fees under the fee statute provided in the Insurance Code, Haw. Rev. Stat. 431:242, which allows  reasonable attorney's fees when the insurer contests coverage and is ordered by a court to pay benefits under the policy.