10 Fla. L. Weekly Supp. 108a
Attorney’s fees — Insurance — Personal injury protection — Calculation of reasonable attorney’s fees — Contingency risk multiplier is appropriate where insured would have faced substantial difficulties in finding competent counsel in relevant market without possibility of multiplier because insured was at fault in accident and her own personal injury case had little or no value — Where likelihood of success was even at outset of case, multiplier of 1.5 is awarded — Expert witness fee awarded — Insured is awarded prejudgment interest on settlement, and her counsel is awarded prejudgment interest on attorney’s fees and costs
CECELIA L. FOX and JAMES L. FOX, Plaintiffs, v. TWIN CITY FIRE INSURANCE COMPANY, Defendant. Circuit Court, 20th Judicial Circuit in and for Lee County, Civil Action. Case No. 00-8581 CA JSC. November 21, 2002. John S. Carlin, Judge. Counsel: Gregory J. Bosseler, McQuagge, Bosseler & Morgan, LLP, Ft. Myers, for Plaintiffs. Keith Kyle, for Defendant.
ORDER ON PLAINTIFF’S MOTION TOTAX ATTORNEY’S FEES AND COSTS
THIS CAUSE came to be heard upon the Plaintiff’s Motion to Tax Attorney’s Fees and Costs and the Court having heard testimony of Gregory John Bosseler, Esquire, counsel for Plaintiff; Scott Weinstein, Esquire, an attorney tendered as an expert witness by Plaintiff; Keith Kyle, counsel for Defendant and Kristin Woolam, Esquire, an attorney tendered as an expert by Defendant; and having further considered the entire Court file and all the evidence adduced at the Hearing held on September 30, 2002, the Court makes the following finding of fact and conclusions of law:
On June 29, 1999, Plaintiff was involved in a motor vehicle accident. At the time of the accident, Plaintiff had available coverage for Personal Injury Protection benefits (PIP) in the amount of $90,000.00 with Defendant. Defendant failed to pay certain of her claims. Suit herein was filed on October 11, 2000, seeking to recover available PIP benefits for medical treatment received by Plaintiff as a result of injuries received in the motor vehicle accident. Initially, the claim for Personal Injury Protection benefits was vigorously defended.
Prior to the suit being filed, the Plaintiff underwent two Independent Medical Examinations with Board Certified Orthopedic Surgeon, Dr. John White, and two Independent Medical Examinations with chiropractor, Dr. Jeff Rosner, in Fort Myers, Florida. After suit was filed, Twin City again requested Plaintiff undergo an Independent Medical Examination by Dr. John White. In response to this fifth request for an Independent Medical Examination, Plaintiff filed and prevailed on a Motion for Protective Order to preclude the taking of this fifth Independent Medical Examination.
Finally, after protracted litigation, on or about December 7, 2001, Plaintiff received a final settlement check for a total of $17,882.84.
It is well established that when an insurer settles during suit, it owes attorney’s fees and costs to Plaintiff. Wollard v. Lloyds & Cos., 439 So.2d 217, 218 (Fla. 1983). Further, defense counsel stipulated to the entitlement for Plaintiff for attorney’s fees and costs after settlement was made.
AMOUNT OF REASONABLE FEES
A. Time and Labor.
Plaintiff’s attorney, Gregory J. Bosseler, Esquire, submitted an itemized Affidavit of Attorney’s hours, and supplemented the Affidavit with testimony regarding the services rendered after the Affidavit was executed. Mr. Bosseler testified that he had expended 56.7 attorney hours and 11.9 paralegal hours.
Plaintiff attorney fee expert, Scott Weinstein, Esquire, testified that he had reviewed Plaintiff’s entire file and the Affidavit of Fees, as well as defense counsel’s time records, for the purposes of determining the reasonableness of the time involved and the reasonable hourly rate for the attorney rendering the services. He testified that 50 attorney hours at $200.00 per hour was reasonable for services rendered. As to paralegal services, Mr. Weinstein testified that 11.9 hours at $65.00 was reasonable and necessary.
Defense attorney fee expert, Kristin Woolam, Esquire, testified that she reviewed Plaintiff attorney’s itemized statement only and testified that 40 hours of attorney time at an hourly rate of $175.00 per hour was reasonable and 4 hours of paralegal time at $65.00 per hour was reasonable.
B. Novelty, Complexity and Skill Required.
This was not a run of the mill PIP case. See U.S. Security Insurance Company v. Lapore, 617 So.2d 374 (Fla. 3rd DCA 1993). The case involved a higher level of skill. Plaintiff had undergone four IMEs prior to filing suit and the level of complexity in handling the case was extremely high. There were nine (9) different providers and numerous reimbursement requests by the Plaintiff for not only prescriptions and mileage, but also for non-medical services rendered. This was not a suit to merely coax Defendant into paying benefits. It was apparent at the outset that Defendant would vigorously defend this suit.
C. Amount Involved and Results Obtained.
Plaintiff’s attorney sought and obtained payment in full of available coverage on all medical bills. The result obtained was the maximum that could be achieved.
D. Contingent Nature of Fee, Relevant Market and Mitigation of Risks.
Plaintiff had a pure contingent fee contract with Mr. Bosseler. Mr. Bosseler undertook the entire risk of loss of a recovery in this case. The contract provided for the fee to be determined by the Court. Plaintiff was not obligated to pay anything whatsoever absent the Court award. Therefore, the application of the contingency risk multiplier to the lodestar is within the sound discretion of the Court.
Mr. Weinstein testified that competent representation in the instant action required an experienced trial attorney with a well-founded knowledge of insurance claim disputes. He further testified that in a relevant market (specifically, Lee County), attorneys of skill and reputation similar to Mr. Bosseler would not accept a case such as this without the possibility of the multiplier. Further, Mr. Weinstein testified that there are not a large number of attorneys who would accept such a case given the nature of the case at its inception. There was no other significant way Mr. Bosseler could mitigate the risk of non payment in representing Plaintiff; she was the at fault driver and her own personal injury case had little or no value (it settled for $500.00).
There is evidence in the record, and the Court so finds, that without risk enhancement, Plaintiff would have faced substantial difficulties in finding competent counsel in the relevant market. A multiplier is implicable.
E. Contingency Risk Multiplier.
Plaintiff’s expert witness, Scott Weinstein, Esquire, testified that the likelihood of success in this case was unlikely at the outset of this case. The Court finds that at the outset of this case, success was approximately even. Thus, it is within the Court’s discretion to find a multiplier of up to a 2.0. The Court awards a multiplier of 1.5.
F. Reasonable Costs.
The parties stipulated to the costs of $537.14.
G. Expert Witness Fee of Attorney.
If the expert witness in a fee hearing expects to be paid for his time for appearing and testifying, the Court must render the attorney an expert witness fee. Stokus v. Phillips, 651 So.2d 1244 (Fla. 2nd DCA 1995). Mr. Weinstein testified without contradiction that he extended six hours for meeting with attorney Bosseler, reviewing attorney Bosseler’s file in preparation for testimony and testifying. Mr. Weinstein also testified without contradiction that his hourly rate for such testimony is $250.00 per hour. Accordingly, the Court finds the Plaintiff is entitled to $1,500.00 for this expert witness.
H. Prejudgment Interest.
Plaintiff is entitled to prejudgment interest on the settlement amount and Plaintiff counsel is entitled to prejudgment interest.
Based on the above the Court finds and it is ORDERED and ADJUDGED that the reasonable attorney’s fees, costs and interest in this case are:
a. Attorney time of 50.0 hours for Gregory John Bosseler, Esquire, (number of hours reasonable and necessary) x $200.00 per hour (reasonable hourly rate) = $10,000.00 (lodestar) x 1.5 (contingency multiplier) = $15,000.00.
b. Paralegal time of 11.9 hours at $65.00 per hour = $773.50.
c. Total costs of $537.14.
d. Expert witness fee for Mr. Weinstein for 6 hours of preparation and testifying at $250.00 per hour = $1,500.00.
e. That prejudgment interest at ten percent (10%) per annum is due Plaintiff from October 11, 2000, until December 7, 2001, pursuant to Argonaut Insurance Company of May Plumbing Company, 474 So.2d 212 (Fla. 1985). Thus the total amount of prejudgment interest due Plaintiff is $2,067.80.
f. That prejudgment interest at nine percent (9%) per annum is due to Plaintiff’s counsel on the attorney fees and costs from December 7, 2001, until the entry of this Final Judgment pursuant to Quality Engineering, Inc. v. Hisley South, Inc., 670 So.2d 929 (Fla. 1996). Thus, the total amount of prejudgment interest on Plaintiff’s attorney fees and costs due is $1,398.96 (calculated from December 7, 2001, through November 20, 2002 at 9% per annum).
FINAL JUDGMENT
Pursuant to the attorney’s fee hearing held in this matter and the Order on attorney’s fees and costs rendered in this action, it is ORDERED and ADJUDGED that Plaintiff recover from Defendant the sum of $21,277.40 for which sums the execution issue this 21 day of Nov., 2002.
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