18 Fla. L. Weekly Supp. 1016a
Online Reference: FLWSUPP 1809MEAD
Insurance — Personal injury protection — Attorney’s fees — Amount — Hours reasonably expended — There is no requirement that attorney’s time records itemize time spent on each task within day — Interoffice meetings between attorney and paralegal necessary to coordinate efforts and reduce duplication are compensable — Attorney travel time to appear in person at hearings and depositions of key witnesses is reasonable and is compensable at regular rate — Hours sought by medical provider’s counsel are reasonable in view of insurer’s “go to the mat” defense — Contingency risk multiplier of 2.0 is appropriate where likelihood of success was even or unlikely at outset of case, attorney was unable to mitigate risk of nonpayment, market requires multiplier in PIP cases, attorney recovered more than amount originally sought, and agreement between provider and attorney was pure contingency fee agreement — No merit to argument that necessity of multiplier to obtain competent counsel can only be established by provider’s testimony that he had difficulty obtaining counsel and not by expert testimony of market conditions — Costs, including travel expenses to attend depositions, expert witness fees and prejudgment interest are awarded
BAYBRIDGE CHIROPRACTIC CLINIC, P.A., a/a/o JAN MEADE, Plaintiff, vs. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 1st Judicial Circuit in and for Santa Rosa County. Case No. 2010-CC-650. July 20, 2011. Ross L. Bilbrey, Judge. Counsel: Robert N. Heath, Jr., Robert N. Heath, P.A., Pensacola, for Plaintiff. James C. Rinaman, III, for Defendant.
FINAL JUDGMENT OF ATTORNEY’SFEES AND COSTS
THIS CAUSE came before the court for hearing on July 11, 2011, on the Plaintiff’s Motion for Attorney’s Fees and to Tax Costs (the “Motion”). Plaintiff was not present. Plaintiff’s attorney, Robert Heath, Esq., was present and testified. Plaintiff also offered the expert testimony of Arthur Shimek, Esq., of Pensacola. Defendant was represented at the hearing by James C. Rinaman, III, Esq. Defendant offered the expert testimony of Scott Dutton, Esq., of Tampa. Mr. Shimek and Mr. Dutton were qualified to offer expert testimony regarding attorney’s fees in Personal Injury Protection (PIP) suits, and each offered expert testimony. Various exhibits were offered into evidence and are part of the record. Having heard the testimony of the witnesses, reviewed the documents in evidence, having heard argument of counsel, having reviewed the memoranda of law submitted, and otherwise being fully advised in the premises, the court makes findings of fact and conclusions of law as set forth below.
Entitlement to Award of Attorney’s Fees and Costs
The award of attorney’s fees to the prevailing party is not allowed absent contractual agreement or statutory authorization. Rowe v. Florida Patient’s Compensation Fund, 472 So. 2d 1145, 1148 (Fla. 1985) (citations omitted). Therefore, before an award of attorney’s fees may be considered, entitlement to fees must be proven. Here the Plaintiff has claimed entitlement to fees based on statute. Section 627.428(1), Fla. Stat., provides,
Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.
Plaintiff prevailed on its motion for summary judgment and a final judgment was entered on October 19, 2010. Plaintiff timely filed its Motion. An appeal of the final judgment was taken by Defendant, but the appeal was later dismissed. Therefore, there is no dispute that the Plaintiff was the prevailing party in this case, that Plaintiff has prevailed on all issues, and that Plaintiff is entitled to an award of attorney’s fees as well as prevailing party court costs.
Law on Attorney’s Fees
In Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828, 831 (Fla. 1990), the Supreme Court developed the test for trial courts to follow in computing fees in contingency cases. Expanding on Rowe1, the Court in Quanstrom gave the factors a court should consider both in calculating the reasonable hourly fees and then determining whether to apply the contingency fee multiplier. The Florida Supreme Court in Quanstrom held that the trial court should:
A. Determine the number of hours reasonably expended on litigation;
B. Determine a reasonable hourly rate of the attorneys for the party entitled to attorneys’ fees;
C. Multiply the result of 1 and 2;
D. Adjust the fee up or down depending upon:
(1) Whether the relevant market requires a contingency multiplier to obtain competent counsel;
(2) Whether the attorney was able to mitigate the risk of non-payment in any way;
(3) Whether the factors set forth in Rowe are applicable, especially:
(a) The amount involved;
(b) The results obtained;
(c) The type of fee arrangement between the attorney and the client.
An award should also be given for reasonable paralegal fees. Loper v. Allstate Ins. Co., 616 So. 2d 1055 (Fla. 1st DCA 1993). Plaintiff’s paralegal fees are also entitled to the Quanstrom multiplier. State Farm Mut. Auto. Ins. Co. v. Edge Family Chiropractic, P.A., 41 So. 3d 293 (Fla. 1st DCA 2010) [35 Fla. L. Weekly D1438a].
Hours Reasonably Expended
Mr. Heath testified that he expended 157.25 hours in billable attorney time which were reasonable and necessary for this case. He also testified that his paralegals, primarily Lisa West, expended 136.2 hours of paralegal time which were also reasonable and necessary for this case. Detailed billing records from Mr. Heath and his paralegal were admitted into evidence. These records were made contemporaneous with the billing as required by Rowe. Mr. Heath testified that Ms. West had expended greater total time on the case, but that he revised her billing to exclude any clerical or administrative time. Mr. Shimek testified that he conducted a detailed examination of Mr. Heath’s billing records, and entire court file, and concluded that the hours claimed by Mr. Heath and his paralegal were reasonable and necessary in the representation of the Plaintiff.
The Defendant contested that 157.25 hours claimed by Mr. Heath and 136.2 hours claimed for paralegal time were reasonably and necessarily expended. Mr. Dutton opined that 76.5 hours were reasonable and necessary for Mr. Heath and 36.5 hours for his paralegal. Mr. Dutton examined the billing records of Mr. Heath and his paralegal and sought to excise various billing entries which he contended were excessive.
Mr. Dutton was strongly impeached on cross examination. Mr. Dutton testified that from September 2010 to February 2011, his law firm, Dutton Law Group, P.A., was paid over $100,000 for legal work by the Defendant. He also testified that his law firm has at least 150 current cases as counsel for the Defendant. While it may be expected that an expert will come to court with a plaintiff or defense perspective, it is damning to an expert’s credibility when an expert has an ongoing business relationship, is regularly retained by, and makes a substantial income from a party. “The more extensive the financial relationship between a party and a witness, the more likely it is that he has a vested interest in that financial relationship continuing.” Allstate Ins. Co. v. Boecher, 733 So. 2d 993, 997 (Fla. 1999) [24 Fla. L. Weekly S187a].2 As a finder of fact weighing the relative credibility of the competing experts, the court finds Mr. Dutton to not be a credible expert in this case. The court finds the opinions of Mr. Shimek to be credible and gives those opinions substantial weight.3
Mr. Dutton and Mr. Rinaman objected to numerous aspects of the billing. All of the objections are unavailing but certain objections will be addressed.4
The attorney and paralegal bills as a whole were objected to because of block billing. While an insurance company or other client may require itemized billing with time broken down by each task accomplished in a particular day, there is no such requirement under Rowe or Quanstrom. The issue is whether the time expended was reasonable. Having reviewed Mr. Heath’s billing records, having heard the testimony, and being familiar with billing on other PIP cases, the court concludes the time expended was reasonable.
The Defendant “decided to go to the mat” in defending this action. See State Farm Fire & Cas. Co. v. Palma, 555 So. 2d 836, 837 (Fla. 1990). Initially this case was brought as a small claims suit. Defendant sought to invoke the Rules of Civil Procedure while Plaintiff objected and sought an expedited trial. Defendant filed discovery and objected to discovery sought by Plaintiff. Defendant objected to the pre-suit demand and sought summary disposition, which was clearly unavailing in a small claims case with factual disputes. Defendant filed a $1 proposal for settlement on two occasions putting the Plaintiff at risk for substantial attorney’s fees.
After the case was transferred to county civil, Defendant objected to amending the complaint, in clear disregard for the well known liberality of amending pleadings, even though the case was not re-noticed for trial. In answer to the amended complaint Defendant demanded a jury trial when Plaintiff had not. The Defendant sought to deny the entire claim for PIP benefits by alleging fraud. Defendant sought involuntarily dismissal based on fraud. The Defendant filed for summary judgment. Defendant’s allegations of fraud also put Plaintiff at risk of attorney’s fees if it did not prevail. Defendant attempted to file pleadings and dispositive motions after the court had already had what was agreed to be a dispositive hearing. Defendant filed a motion for reconsideration before the court even signed a proposed order. Defendant took various other actions asserting its rights within the very limits of appropriate practice and at times bordering on vexatious litigation. “Having chosen to stand and fight over this charge, . . . (defendant) of course, made a business judgment for which it should have known a day of reckoning would come should it lose in the end.” Palma, 555 So. 2d at 837. See also Roco Tobacco (USA), Inc. v. Florida Div. of Alcoholic Beverages, 934 So. 2d 479, 482 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D1826b].
The Defendant was looking for any possible legal grounds to avoid paying this PIP claim. This case raised novel issues on the need for a massage premise license by a chiropractor.5 Mr. Heath, recognizing the extent to which the Defendant sought to avoid liability, took some action in anticipation of defenses that the Defendant may have raised. In some other litigation this action by Mr. Heath could be argued to be running down rabbit holes and running up bills — but here it was excellent lawyering and was reasonable and necessary to be prepared to counter possible defenses the Defendant may have attempted to raise.
Specifically it was reasonable to meet with Jan Meade, the assignor of benefits, before the IME to insure that the Defendant could not raise a causation defense. It was reasonable to bring the action before the Florida Board of Massage Therapy concerning the use of the premise license of the tenant, Blakely Parent, by the Plaintiff. This allowed the Plaintiff to amend the Complaint and to recover benefits for massage therapy as well as being useful in countering the Defendant’s fraud allegations. The coordination of benefits with Blue Cross and Blue Shield was useful and necessary in part because the fraud issue raised by Defendant.
Defendant objected to the interoffice conferences and memoranda between Mr. Heath and his paralegal. The interoffice conferences and memoranda between Mr. Heath and his paralegal served to coordinate efforts in the case to reduce duplication. These efforts are therefore compensable. >Centex-Rooney Construct. Co. v. Martin County, 725 So. 2d 1255, 1259-60 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D336a].
Defendant objected to Mr. Heath’s travel time to attend hearings in Milton. Mr. Heath’s office is in Pensacola. He appeared telephonically at certain minor hearings, but for most of the litigation it was necessary and appropriate that he appeared in person. This involved traveling to Milton. At the hearing on the Motion no one disputed the court’s contention that no attorney with an office in Santa Rosa County practices in the area of plaintiffs’ PIP law. It was therefore necessary for the Plaintiff to hire an attorney out of county. Travel from Pensacola to Milton for hearings was therefore a necessary expense. See Mandel v. Decorator’s Mart, Inc. of Deerfield Beach, 965 So. 2d 311, 315 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D2242c].
Mr. Heath traveled to Tampa to take the depositions of Michelle Patino and Amanda Mitchell. Defendant objected to the travel time spent going to and from Tampa. In response to interrogatories Ms. Patino was listed as a medical claims representative with the Defendant who served as the claims adjuster. Ms. Mitchell was listed as a medical claims representative with the Defendant who responded to the 30 day demand letter. Ms. Patino and Ms. Mitchell were key witnesses. While a video conference deposition may be appropriate for certain deponents, where a deposition is being taken of a key witness it is reasonable for an attorney to attend that deposition in person. In fact, the testimony revealed that Mr. Rineman attended both depositions in person, and incurred travel expenses which the Defendant paid. If these depositions were important enough for Mr. Rineman to attend in person then they were important enough for Mr. Heath to attend in person.
Alternatively, Defendant seeks a lower hourly rate for Mr. Heath’s time expended in travel. While an attorney may agree with a client to bill a lower hourly rate for travel, absent such an agreement it seems inequitable to mandate a lower rate. As discussed above, the time spent in travel was reasonable and necessary. But for the time spend in travel, Mr. Heath could have been working on and billing other cases.
Finally, the court notes according to the unimpeached testimony of Mr. Shimek, Mr. Heath spent forty fewer hours in attorney time on the case than Defendant’s attorneys.6 This was in spite of the fact that as counsel for Plaintiff, Mr. Heath had to carry the burden of proof. Testimony at the hearing revealed that normally a plaintiff’s attorney will spend more time on a case than a defendant’s attorney for this reason.
Here the Defendant faced a novel issue, went to the mat, and lost. Defendant should have been well aware of the risk of going to the mat and losing. The court believes Mr. Shimek’s testimony that the hours expended by Mr. Heath were reasonable and were in fact conservative given the lengths to which the Defendant went to defend this claim. The hours sought by Mr. Heath for attorney and paralegal time will be awarded. The court finds that Mr. Heath has expended, and Plaintiff is entitled to recover, 157.25 hours of attorney time, less 3.95 hours already awarded and paid by Defendant in the court’s Order Awarding Attorney’s Fees for Motion for Protective Order, for a total of 153.3 hours. Mr. Heath’s paralegals have expended and Plaintiff is entitled to recover 136.2 hours of paralegal time.
Reasonable Hourly Rate
After the court has considered the number of hours expended, under Rowe and Quanstrom the hourly rate of the attorney and paralegal must be considered. “The party who seeks the fees carries the burden of establishing the prevailing “market rate,” i.e., the rate charged in that community by lawyers of reasonably comparable skill, experience and reputation, for similar services.” Rowe, 472 So. 2d at 1151.
Mr. Heath seeks an hourly rate of $425 per hour for his legal work. Mr. Heath was admitted to the Florida Bar in 1981. He is a board certified civil trial lawyer. He has tried over 100 jury trials. He is AV rated in Martindale-Hubbell. Over the past ten years more than half of his practice has been PIP litigation. He has been qualified as an expert witness in numerous PIP cases. He has received a number of legal accolades which were mentioned at the hearing. In the court’s view he is the preeminent plaintiffs’ PIP attorney in the Florida panhandle.
Plaintiff submitted eight orders or judgments from the Escambia County Court issued since 2009 where Mr. Heath’s hourly rate for attorney’s fees was awarded at $425 per hour. Defendant attempted to discredit these awards by stating that they all were issued by the same county judge who handles all county civil matters in Escambia County. That does not mean, however, that the orders were incorrect. Furthermore the corporate defendants in all of the cases provided by Mr. Heath undoubtedly had the resources to bring an appeal of the awards if they were not supported. Mr. Heath testified that none of the awards were reversed on appeal.
Mr. Heath was also awarded attorney’s fees at a $425 hourly rate by the Leon County Court in October 2010 for expert testimony. Earlier this year, in this case, this court awarded Plaintiff attorney’s fees at a $425 per hour rate for Mr. Heath in the Order Awarding Attorney’s Fees for Motion for Protective Order. Testimony at the hearing showed that this awarded was not appealed by the Defendant and Defendant has satisfied this amount. Defendant is given credit for this amount paid at the conclusion of this order. Therefore, $425 per hour has already been found by this court to be a reasonable hourly rate in this case for Mr. Heath.
Mr. Shimek testified that the $425 per hour sought by Mr. Heath was a reasonable hourly rate given Mr. Heath’s expertise in PIP. This rate is justified given Mr. Heath’s skill, experience, and reputation in the Escambia/Santa Rosa legal community. The court has reviewed the factors in Rowe and Quanstrom as well as Rule 4-1.5(b), Rules Regulating the Florida Bar, and agrees with the $425 per hour rate sought by Mr. Heath.
Mr. Dutton’s opinion was that a rate as low as $135 per hour would be reasonable and $275 was at the upmost end of a reasonable hourly rate. As mentioned above, because his ongoing attorney-client relationship with the Defendant the court does not consider his opinions to be credible. Additionally, this opinion disregards the numerous award of a $425 hourly rate for Mr. Heath’s work by at least three separate county courts.7
Plaintiff seeks an award of $105 per hour for paralegal time expended in this case. Mr. Heath testified that Ms. West, who performed almost all of the paralegal work, has been a paralegal for over 25 years and has over 22 years experience as a litigation paralegal. She is a registered Florida paralegal in accordance with the Florida Bar program. Mr. Heath testified that almost of all of Ms. West’s work is on PIP cases. Mr. Heath testified that Ms. West has worked for him for seven years. Mr. Heath provided the court with various orders from other courts awarding an hourly rate of $105 for Ms. West’s paralegal work. Mr. Shimek agreed that the $105 hourly rate for paralegal work was reasonable. The court agrees and determines that an hourly rate for paralegal work of $105 is a reasonable hourly rate in this case.
Applying these hourly rates to the time set forth above results in 153.3 hours of attorney time multiplied by $425 per hour equaling $65,152.50 in attorney time. Applying these hourly rates to the paralegal time results in 136.2 hours of paralegal time multiplied by $105 per hour equals $14,301.00 in paralegal time.
Multiplier
After the number of hours and reasonable hourly rate are determined, then the multiplier can be considered. Under Rowe, if an attorney took a case on a contingency fee basis and the attorney’s fees were awardable by statute, then the trial court was required to award a bonus via multiplier. In 1990, in Quanstrom the Florida Supreme Court modified its position and held that an award of a bonus or multiplier for a contingency fee case was not mandatory in all cases. Rather, trial courts are required to (1) determine whether the market requires a multiplier to obtain competent counsel; (2) determine whether the attorney was able to mitigate the risk of non-payment; and (3) look at the factors set forth in Rowe, particularly (a) the amount involved; (b) the results obtained; and (c) the fee arrangement between attorney and client. Quanstrom, 555 So. 2d at 834. The Quanstrom Court also modified Rowe to require trial courts to consider the likelihood of success. If success was more likely than not at the outset, the court may apply a multiplier of 1 to 1.5; if even at the outset 1.5 to 2.0; if unlikely at the outset 2.0 to 2.5. Id. A trial court is required to make a specific finding as to whether the multiplier should be increased or decreased and the failure to do so is reversible error. Schneider v. National Casualty Co., 623 So. 2d 798 (Fla. 3d DCA 1993).
The parties disputed the meaning of the first Quanstrom factor. Mr. Heath and Mr. Shimek testified that the market requires a multiplier to obtain competent counsel. The court agrees with this assessment. There are very few attorneys in the area who practice plaintiffs’ PIP law. The number of attorneys practicing plaintiffs’ PIP law in the area has decreased over the past few years.8
The testimony at the hearing revealed that Mr. Heath as well as possibly one other attorney in Escambia County and one other attorney in Okaloosa County practice plaintiffs’ PIP law as the majority of their practice. Mr. Shimek testified that this is a reduction from the approximately twelve attorneys in the area handling plaintiffs’ PIP cases a few years ago.9
Plaintiff relies on Massie v. Progressive Express Ins. Co., 25 So. 3d 584 (Fla. 1st DCA) [34 Fla. L. Weekly D2364b], for its position that expert witnesses can testify as to whether the market requires a multiplier to obtain competent counsel. Defendant contends that Plaintiff needed to testify at the hearing it had difficulty obtaining counsel, relying on Progressive Express Ins. Co. v. Schultz, 948 So. 2d 1027 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D548b]. Massie noted its holding’s disagreement with Schultz. Massie, 25 So. 3d at 585.
Defendant also relies on Eckhardt v. 424 Hintze Mgmt., LLC., 969 So. 2d 1219 (Fla. 1st DCA 2007) [32 Fla. L. Weekly D2966a]. In Eckhardt the court stated, “Because the landlord did not testify at the hearing, there was no evidence to suggest that the landlord had difficulty securing competent counsel.” Id. at 1223. Defendant relies on this language for its contention that there is an inter-district split of authority and that Massie is therefore not binding on this court. This contention omits the remainder of the Eckhardt holding where the court stated, “Further, there was no evidence that the relevant market of landlords were unable to secure competent representation without the application of a contingency multiplier.” Id. This language supports the Plaintiff’s contention that expert testimony of market conditions is sufficient.
Massie is binding on this court and is not a split of authority from Eckhardt. Furthermore it is the correct application of the first Quanstrom factor. Quanstrom requires courts to determine whether the market requires a multiplier. Quanstrom, 555 So. 2d at 834. The market is not one plaintiff seeking one attorney for one PIP case. The market is all plaintiffs seeking any attorney willing to handle plaintffs’ PIP cases. Under Defendant’s position, a lucky plaintiff who happens upon an attorney with a few telephone calls does not get a multiplier while an unlucky or less informed one who has to make numerous calls does. The specific anecdotal result of one search for an attorney has no validity as a representative sampling of the market. It is a survey with a sampling size of one. Expert testimony on the market’s need for a multiplier is much more persuasive than the testimony of one plaintiff.
The court finds the testimony of Mr. Heath and Mr. Shimek availing on the first Quanstrom factor. Mr. Shimek testified that without the possibility of a multiplier there is no incentive to take a PIP case. The market requires a multiplier.
As for mitigation of the risk of non-payment, Mr. Heath was unable to do so. This was a PIP case. These cases almost always involve under $10,000 in damages because that is the no fault minimum under Florida law. An extensive amount of time was necessary to prepare the case and bring it to conclusion. It is not economically feasible for the Plaintiff to retain hourly counsel and spend tens of thousands of dollars pursuing a $5,000 claim. Nor should Plaintiff have had to forego recovery of what it was rightly owed just because the amount involved was not large. Furthermore, it was not economically feasible for Mr. Heath to receive only a percentage share of the recovery. Either Mr. Heath was going to prevail for his client and get a fee, or he was going to fail and get no fee. This Quanstrom factor therefore supports a multiplier.
The Quanstrom Court holds that other factors to be considered in determining whether to award a multiplier are listed in Rowe. The amount involved started as damages not exceeding $5,000 in a small claims PIP suit. The case was then transferred up to county civil jurisdiction. On the issue of results, the Plaintiff received a judgment of $5,510.00 on the principal sum sought. This was higher than the initial amount sought and represented a recovery on all the issues brought by the Plaintiff. The other Rowe factor to be considered is the fee agreement, which was a pure contingency fee. Analyzing these Rowe factors, this amount involved does not support a multiplier while the pre-contingency fees does support a multiplier. Therefore the court concludes these factors together are neutral with regard to a multiplier.
Finally under Quanstrom the court must consider the likelihood of success at the outset of the case. Mr. Heath testified that this was a difficult case from the beginning. Mr. Shimek testified that this was not a run of the mill case at the start. Both Mr. Heath and Mr. Shimek testified that a 2.0 multiplier was appropriate.
Mr. Dutton offered his opinion that the Plaintiff has a substantial likelihood of prevailing. He argued that no multiplier was appropriate or if a multiplier was going to be assessed it should be between 1.0 and 1.25.
Much was made of the massage license issue by both parties and its impact on the likelihood of success at the outset of the case. Having heard all of the testimony, the court therefore concludes that the likelihood of success at the outset of the case was at the low end of even or the high end of unlikely. A reasonable, competent attorney faced a difficult case at the onset with an even to unlikely chance of prevailing on the issues. This certainly was not a case where success was likely at the onset. But for the excellent legal work by Mr. Heath, Plaintiff’s case would have been lost.
Applying all these factors, the court concludes that a 2.0 multiplier is appropriate. That is at the high end of a multiplier of an even chance case and the low end of a multiplier for an unlikely chance case. That is where the court assesses that the prospects of success were in this case at the onset.
Defendant argues that Schultz holds that this court should assess no multiplier because there was no evidence that Plaintiff could not receive competent counsel. See Schultz, 948 So, 2d 1027. As discussed above, Schultz is not the correct standard in the courts of the First District. Furthermore, even if Schultz applied, it would be distinguishable. Unlike in Schultz the number of available plaintiffs’ PIP attorneys here is very limited. The citation to the dockets crowded with PIP suits and the myriad of attorneys waiting to represent plaintiffs in same, complained of in Schultz are not present in Santa Rosa County or the local legal community. Additionally, this case is distinguishable from Schultz for other reasons. The dollar amount involved is greater here and more complex issues were involved.
Costs
Mr. Heath has claimed $3,442.90 in cost as itemized in Plaintiff’s Exhibit 4. Defendant agrees to all of these costs except Mr. Heath’s travel expenses to Tampa for the depositions. Defendant argues that the travel costs claimed should not be taxed pursuant to the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions (“Guidelines”). The Guidelines are advisory only. They do not limit the broad discretion of the trial court. As discussed above it was reasonable for Mr. Heath to attend the depositions. Someone has to pay for his attendance and expenses. Given that Defendant made a business decision to go to the mat, it seems only equitable that it be made to pay the travel expenses.
There is also the issue of expert witness costs associated with Mr. Shimek’s testimony. At the hearing, Mr. Shimek testified that he expected to be paid for his time in preparing for the hearing, attending the hearing, and rendering an opinion. He testified that he spent 10.9 hours before the hearing and 3.0 hours at the hearing. Mr. Shimek testified that hourly rate is $425 per hour and that he has various clients who are currently paying that amount. Mr. Shimek has almost as much experience as an attorney as Mr. Heath. He has been awarded $425 per hour for his time in providing expert testimony in certain other cases as provided by Mr. Heath. Mr. Shimek expended time as an expert witness on the issue of attorney’s fees and expected to be paid for his time. Stokus v. Phillips, 651 So. 2d 1244 (Fla. 2d DCA 1995) [20 Fla. L. Weekly D627c], therefore governs the issue and holds that Mr. Shimek’s expert witness costs are recoverable by the Plaintiff. The hours expended and the hourly fees charged were reasonable and necessary. These costs were occurred at a later time and will be treated differently on the issue of interest.
Interest on Fees and Costs
Plaintiff claims entitlement to interest on the award of attorney’s fees and costs. The case law supports this argument. See Inacio v. State Farm Fire & Cas. Co., 550 So. 2d 92, 97 (Fla. 1st DCA 1989); Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So, 2d 929 (Fla. 1996) [21 Fla. L. Weekly S141a]. Plaintiff became the prevailing party and was entitled to reasonable attorney’s fees and costs as of October 19, 2010, when the final judgment was entered. Therefore all attorney’s fees, paralegal’s fees, and taxable costs, except Mr. Shimek’s costs incurred after that date, are subject to an award of prejudgment interest. The legal rate of interest for 2010 was six percent (6%).
Adding $130,305.00 for attorney’s fees which includes the 2.0 multiplier, $28,602.00 for paralegal’s fees which includes the 2.0 multiplier, and $3,442.90 for costs, exclusive of the recent costs associated with Mr. Shimek’s testimony, results in $162,349.90. This amount accrued interest at $26.6877 per day for each of the 273 days between entitlement and the date of this Final Judgment resulting in prejudgment interest of $7,285.73.
Conclusion
Therefore, based on the above, it is hereby ORDERED and ADJUDGED that Plaintiff shall recover $130,305.00 for attorney’s fees, $28,602.00 for paralegal’s fees, $9,350.40 for costs, and $7,285.73 in prejudgment interest for a total of $175,543.13 which shall accrue interest at the rate of six percent (6%) per year, current statutory rate, for which let execution issue.
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1The Rowe factors for consideration in an award of attorney’s fees are the same as contained in Rule 4-1.5, Rules Regulating the Florida Bar.
2Mr. Shimek is Mr. Heath’s landlord and has testified for him as an expert on prior occasions. However the court does not conclude this relationship reduces Mr. Shimek’s credibility. Mr. Shimek testified that Mr. Heath pays his rent on time and that Mr. Heath is expected to continue to do so regardless of the outcome of the Motion. Mr. Shimek has no financial interest in the outcome of the Motion, other than seeking to be paid for his time, whereas the outcome has a bearing on one of Mr. Dutton’s substantial clients.
3This lack of credibility was shown by some incredible positions taken by Mr. Dutton. For instance he opined that a rate as low as $135 per hour would be on the low end of a reasonable hourly rate for Mr. Heath, in spite of the fact that numerous courts have recently awarded Mr. Heath $425 per hour. The issue of reasonable hourly rate is discussed below. Following his opinion would also result in an award of hours to Mr. Heath of less than one half the hours expended by Defendant’s attorneys. As a finder of fact is it difficult to accept any of Mr. Dutton’s opinions as being reasonable and supported after his rendering such opinions.
4Furthermore, Rowe and Quanstrom do not require the court to audit attorney time like Mr. Dutton testified that he does for insurance company clients. The issue is whether the hours expended were reasonable and necessary.
5Defendant claims the license issue was not novel because other county courts have considered the issue. This argument is unavailing. This court is not bound by the decisions of other county courts. Since there was no binding appellate precedent, this was a novel issue in the First Circuit and specifically in Santa Rosa County.
6There was no testimony as to how much paralegal time was spent by the Defendant.
7The court recognizes that $425 per hour is a high hourly rate, but that does not make it unreasonable. Currently the State of Florida is paying Barry Richards, Esq., outside counsel in insurance litigation $715 per hour. Janet Zink, Cost Mount in Defense of State Insurance Chief Miami Herald, May 19, 2011, http://www.miamiherald.com/2011/05/18/2223357/costs-mount-in-defense-of-state.html. Undoubtedly, Mr. Richards is preeminent in his field, just as Mr. Heath is preeminent in his. The article also notes that the State has contracted with other attorneys at over $700 per hour.
8While this may seem counterintuitive in the current recessed economy, the reduced number of plaintiffs’ PIP law attorneys in the market is in fact likely related to the economy. A plaintiff’s PIP attorney has to expend substantial hours of time in a case with no guarantee of payment. Additionally, litigation costs and paralegal expenses must be advanced. This commitment can go on many years with payment — if any is forthcoming at all — delayed until after an appeal is concluded, as was the case here. Apparently fewer attorneys are willing or able to make this sort of financial commitment in a PIP case with the ongoing Great Recession.
9Mr. Shimek’s testimony revealed that some local plaintiffs’ personal injury attorneys occasionally handle PIP cases as a courtesy to client for claims related to an existing personal injury case. That is a different market than the market for attorneys willing to handle only the plaintiffs’ PIP case.
