18 Fla. L. Weekly Supp. 603a
Online Reference: FLWSUPP 1807HAED
Insurance — Personal injury protection — Attorney’s fees — Amount — Attorney travel time over and above what local attorney would charge is not warranted in absence of proof that competent local attorney could not be found — Costs and expert witness fees awarded
GEORGE J. HAEDICKE, M.D. P.A., A Florida Corporation, Plaintiff, vs. JESSICA RENSMITH and SEMINOLE CASUALTY INSURANCE COMPANY, A Florida Corporation, Defendants. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 07-19081, Div. H. March 23, 2011. Honorable Eric R. Myers, Judge.
ORDER ON DEFENDANT SEMINOLE CASUALTY INSURANCE COMPANY’S MOTION REASONABLE FEES & COSTS
THIS CAUSE came to be heard on December 13, 2010, at an evidentiary hearing on Defendant Seminole Casualty Insurance Company’s Motion for Reasonable Attorney Fees and Costs against Plaintiff George J. Haedicke, M.D. P.A., and the Court, having received sworn testimony from Defendant’s counsel and Defendant’s expert, makes the following findings of fact and conclusions of law:
1. This is PIP action where this Court previously awarded Final Summary Judgment in favor of Defendant Seminole Casualty Insurance Company (Defendant) [16 Fla. L. Weekly Supp. 675b].
2. Defendant’s counsel, Susan P. Brown, Esq. and Don Mathews, Esq., of Don Mathews & Associates, P.A., are entitled to fees and costs from Plaintiff George J. Haedicke, M.D., P.A., pursuant to Fla. R. Civ. P. 1.442 and Florida Stat. §768.79, beginning February 27, 2009, the date Defendant served its Proposal for Settlement on Plaintiff. Vines v. Mathis, 867 So.2d 548, 549, 29 (Fla.App. 1 Dist. Feb 27, 2004) [29 Fla. L. Weekly D496c]; Cooper v. Brickell Bayview Real Estate, Inc., 711 So.2d 258, 258 (Fla.App. 3 Dist.,1998) [23 Fla. L. Weekly D1327c] (remanding to the trial court with instructions to award fees and costs from the “date the offer was served.”); Jordan v. Food Lion, Inc., 670 So.2d 138, 141-142 (Fla.App. 1 Dist.,1996) [21 Fla. L. Weekly D694a] (recognizing Fla.Stat. §768.79 permits the qualifying party to receive an award of attorney’s fees and costs incurred from the date of the service of the offer)(emphasis in the original).
3. Defendant’s expert, Attorney Scott Dutton, testified $250.00 per hour for attorney time and $100.00 per hour for paralegal time is reasonable: Moreover, Defendant’s expert testified $250.00 per hour for attorney time is a conservative hourly fee in this jurisdiction. This is supported by the fact that Plaintiff’s own expert, Attorney Timothy Patrick, testified his hourly rate is $375.00 per hour, whether testifying as an expert witness or litigating a PIP action.
4. Based on the evidence presented, this Court recognizes $250.00 per hour for attorney time and $100.00 per hour for paralegal time is reasonable in this case. Bailey v. Chamblee, 697 So.2d 972, 973-974 (Fla.App. 2 Dist., 1997) [22 Fla. L. Weekly D1966b]; Broward Marine, Inc. v. Palm Beach Polo Holdings, Inc., 902 So.2d 855, 858 (Fla.App. 4 Dist.,2005) [30 Fla. L. Weekly D1165b] (recognizing that it was error to limit an attorney’s fee award based on the in-house salary of the attorney performing the work as opposed to the reasonable hourly rate for the work performed); Leibowitz v. City of Miami Beach, 683 So.2d 204, 205 (Fla.App. 3 Dist.,1996) [21 Fla. L. Weekly D2521a] (opining that “the mere fact that the [City] was represented by its house counsel who was paid an annual salary does not militate against the allowance of reasonable attorney’s fees as provided by law”)(quoting City of Boca Raton v. Faith Baptist Church of Boca Raton, Inc., 423 So.2d 1021, 1022 (Fla. 4th DCA 1982)(recognizing awarding the reasonable value for services rendered as provided by statute did not constitute a windfall for City’s attorney)).
5. This Court expressly considered the rulings in A.G. Edwards & Sons, Inc. v. Davis, 559 So.2d 235, 237 (Fla.App. 2 Dist.,1990) and Nelson v. Marine Group of Palm Beach, Inc., 677 So.2d 998, 1000 (Fla.App. 4 Dist., 1996) [21 Fla. L. Weekly D1849a] and finds both cases distinguishable from the facts presented here.
6. Based upon the testimony of Attorney Brown, no written contract exists between Defendant and Don Mathews and Associates, P.A., however, their attorneys represent Defendant in numerous insurance-related actions at less than a reasonable market rate in exchange for performing bulk work on Defendant’s behalf.
7. Defendant is entitled to expert witness fees for proving the amount of fees. D’Alusio v. Gould & Lamb, LLC, 36 So.3d 842, 847 (Fla.App. 2 Dist.,2010) [35 Fla. L. Weekly D1226a] (failing to award expert witness fees as costs was reversible error)(citing Rock v. Prairie Bldg. Solutions, Inc., 854 So.2d 722, 724 (Fla.App. 2 Dist.,2003) [28 Fla. L. Weekly D1951a] and Stokus v. Phillips, 651 So.2d 1244 (Fla. 2d DCA 1995) [20 Fla. L. Weekly D627c]).
8. In this case, Attorney Dutton expended 9.5 hours at a fee of $250.00 per hour, and charged a $100.00 administrative fee when retained as Defendant’s expert.
9. Defendant is entitled to statutory fees for litigating the issue of entitlement to attorney’s fees, but not for litigating the amount of attorney’s fees. State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 833 (Fla.1993).
10. Although this Court granted Defendant’s Motion for Summary Judgment on May 4, 2009, Plaintiff continued to litigate the merits, even after Plaintiff noticed its appeal on the summary judgment.1 As such, Plaintiff’s ongoing efforts to challenge summary judgment at the trial court level necessitated Defendant’s continued defense.
11. Defendant, as the prevailing party, has not been the primary cause of the extensive litigation in this case. Thus, flexibility as to Defendant’s fee award is appropriate. State Farm Fire & Cas. Co. v. Palma, 555 So.2d 836, 838 (Fla.1990)(finding that where a party elects to “go to the mat” in pursuit of its position, that party “should have known a day of reckoning would come should it lose in the end.”). The Court in Palma cited McGowan v. King, Inc., 661 F.2d 48, 51 (5th Cir. 1981), in reversing what it termed a “stingy” allowance of attorney’s fees:
The borrower’s counsel did not inflate this small case into a larger one; its protraction resulted from the stalwart defense. And although defendants are not required to yield an inch or to pay a dime not due, they may by militant resistance increase the exertions required of their opponents and thus, if unsuccessful, be required to bear that cost.
Palma at 837.
12. Attorney travel time over and above what a local attorney would charge is unwarranted absent proof that a competent local attorney could not be obtained. Mandel v. Decorator’s Mart, Inc. of Deerfield Beach, 965 So.2d 311, 315-16 (Fla.App. 4 Dist.,2007) [32 Fla. L. Weekly D2242c] (citing Chandler v. Chandler, 330 So.2d 190, 191 (Fla. 2d DCA 1976)).
13. Defendant’s counsel expended 96.3 attorney hours and 4.8 paralegal hours between February 27, 2009 and the Hearing on December 13, 2010.
14. Defendant’s expert testified 74.2 attorney hours and 4.0 paralegal hours were reasonable in this case.
15. Defendant incurred $1294.02 in reasonable costs.
ORDERED AND ADJUDGED, as follows:
1. Defendant’s Motion for Reasonable Fees is Granted for a total of 65.9 hours for attorney time at $250.00 an hour, and 4.0 hours for paralegal time at $100.00 an hour, for total fees in the amount of $16,875.00.
2. Defendant’s Motion for Costs is Granted in the amount of $1,294.02.
3. This Court awards Defendant its expert attorney’s fees in the amount of 9.5 hours at $250.00 an hour, for total expert fees in the amount of $2375.00.
4. In sum, this Court awards Defendant a total of $20,544.02 for its reasonable attorney’s fees, expert attorney’s fees, and costs.
5. Interest shall accrue at the statutory rate.
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1Subsequent to this Court awarding Defendant summary judgment, Plaintiff moved for rehearing, challenged Defendant’s entitlement to fees & costs, and sought relief from judgment; this matter remains on appeal.
