10 Fla. L. Weekly Supp. 452a
Attorney’s fees — Insurance — Personal injury protection — Calculation of attorney’s fees and costs — $300 per hour is proper market rate for experienced board certified PIP lawyer, $250 per hour is proper hourly rate for attorney with less PIP expertise, and $90 per hour is reasonable rate for paralegal — Contingency risk multiplier — Application of multiplier is appropriate where it would have been difficult if not impossible to get proper legal representation without use of contingency contract and possibility of multiplier — Where likelihood of success for insured at outset was slightly better than 50/50, and consequences to insured of loss were high because fact that case was “battle of experts” made it expensive and insured faced owing costs to insurer if he lost, multiplier of 1.5 is awarded — Costs and expert witness fees awarded
RICHARD N. DEJOINVILLE, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. MS-02-16077 RJ. April 29, 2003. Peter Evans, Judge. Counsel: Diego C. Asencio, Diego C. Asencio, P.A., North Palm Beach. Williams & Leininger, P.A., West Palm Beach. Robert Critton, Burman CL&C, West Palm Beach.
ORDER ON PLAINTIFF’S MOTION TO TAXATTORNEYS FEES AND COSTS WITH INTEREST
THIS CAUSE came to be heard upon the Plaintiff’s Motion to Tax Attorneys Fees and Costs with Interest and the Court having heard the testimony of Eric Luckman (Board Certified Civil Trial Lawyer), Diego C. Asencio (Board Certified Civil Trial Lawyer), and Defendant’s attorney fee expert witness, Robert Merkle, a highly respected defense attorney with many years experience, and having further considered the billing statements from Plaintiff’s counsel, Diego C. Asencio, the billing statements of defense counsel, the deposition of Dr. DeLucia, the deposition of Michelle Buck, the hearing transcript on the discovery disputes, the billing statements of Plaintiff’s counsel, Robert Critton, the billing statements of the Plaintiff’s legal assistant, Bobby McKenna, the cost testimony Diego C. Asencio and the cost statements, invoices and check stubs from Diego C. Asencio; and the Court having considered the entire court file and all of the evidence adduced at the attorney fee hearings held on February 14, 2003 and February 18, 2003, the court makes the following findings:
The parties agreed that this matter was resolved on November 4, 2002 when Defendant stipulated that it owed attorneys fees and costs and that it would promptly pay $1,354.72 in PIP benefits and interest. While the defense agreed that fees and costs were owing, there was no agreement as to (a) the time that was reasonably and necessarily spent, (b) the market rate for each attorney and legal assistant, (c) the reasonable taxable costs, (d) the multiplier to be applied, if any, or (e) the interest owed on the fees and costs. Accordingly, the court was required to make findings of facts on each of the above issues in this order.
The court finds that sixty (60) hours spent by attorney Diego C. Asencio up to when Defendant agreed to pay his client’s PIP benefits with interest was reasonable and necessary. The court finds that two (2) hours spent by attorney Robert Critton to be reasonable and necessary. Likewise the court finds that 1.5 hours spent by legal assistant Bobby McKenna was reasonable and necessary.
The court finds that this case was not novel but it was somewhat complex. Plaintiff’s counsel had to concern himself with problems concerning deductibles, subrogation, and bill reduction by the carrier.
The court finds that it was reasonable for the Plaintiff’s counsel to take the Defendant’s refusal to pay benefits seriously. It is proper, and indeed required, that an attorney taking on such a case represent the client zealously. The court agrees with the testimony of attorney Asencio that the defense position created a risk on non-recovery. Mr. Asencio testified that even after his very best efforts he has lost PIP bill reduction cases and cases involving the termination of PIP benefits. PIP litigation can require costly investments of time and money for the practitioner.
The court finds that the market rate for the hourly fees charged in the Palm Beach County area by lawyers of reasonable comparable skill, experience and reputation performing similar services as those performed by Plaintiffs’ counsel ranges between $200 per hour to $325 per hour. Plaintiff has requested $300 per hour for Diego C. Asencio. This is well within the ranges of fees charged in the community for similar work. Other courts have consistently awarded Mr. Asencio $300 per hour on PIP cases since about March of 2001. Further, even Mr. Merkle, the defense expert, conceded that Mr. Asencio is one of the premier PIP lawyers in the State of Florida. Diego C. Asencio has been board certified since 1989 and has been practicing for more than twenty (20) years. The court finds $300.00 per hour to be a proper market rate.
Plaintiff has requested $325.00 per hour for Robert Critton, Esquire. The court disagrees and finds that Mr. Critton should be awarded fees, on this matter, at the rate of $250 an hour. Mr. Critton certainly has a stellar reputation and is a greatly respected attorney in this region of the state. However, in the handling of PIP cases he clearly does not have the expertise of Mr. Asencio and commands a slightly smaller hourly rate in the handling of these type of matters.
Plaintiff also requested that the court find that $90.00 per hour for paralegal time be awarded under F.S. §57.104 for the work done by Bobby McKenna, the Legal Assistant who worked on the Plaintiff’s case. This amount the court finds is reasonable.
The amount involved was small. In fact, this was a small claims court case. Ultimately, the Defendant paid every penny it owed. It paid $1,354.72 in interest and benefits. However, Plaintiff’s counsel did not inflate this small case into a larger one. Plaintiff offered to resolve the dispute before suit was filed. After suit was filed Plaintiff continued to offer to resolve the matter. Even when the benefits were not entirely computed, Plaintiff made specific offers to resolve the matter.
The case was time consuming. Plaintiff’s counsel testified that he was prevented from working on other matters because of the large amount of time that was required. A November 2002 trial date was set in this case at the pretrial conference in September 2002. This court required that discovery be completed by October 2002. Clearly Plaintiff’s counsel had to make time for this case given those deadlines.
Plaintiff had a pure contingent fee contract with the law firm of Diego C. Asencio, P.A. and Diego C. Asencio assumed representation under that contract still on a pure contingency. Both Diego C. Asencio and Robert Critton under took the entire risk of the loss of recovery in this case. The contract only allowed for a fee to be determined by the court. Plaintiff was not obligated to pay any fee whatsoever absent a court award. Therefore, the application of a contingency risk multiplier to the Loadstar is within the sound discretion of the court.
While a contingency risk multiplier is not appropriate in a run of the mill insurance case such as U.S. Sec. Ins. Co. v. Lapour, 617 So.2d 374 (Fla. 3d DCA 1993), it has been amply shown this was not such a run of the mill case. Here the defense billing time demonstrates that this was not a case where it “rolled over” as claimed by the defense. The defense spent over 140 hours. Even subtracting time after the settlement, the defense spent nearly twice as much time as the Plaintiff’s counsel.
The court finds that it would have been difficult if not impossible to get proper legal representation on a contested PIP case like this one without the use of a contingency contract and the possibility of a fee multiplier. The court heard the testimony of attorney Asencio that the multiplier persuaded him to enter into the area of PIP litigation. The court finds that attorneys of skill and reputation will not choose to pursue such cases. Without a contingency fee multiplier such cases are highly undesirable.
The court finds that at the outset the likelihood of success in this case for the plaintiff was a slightly better then 50/50. The consequences to the plaintiff of a loss were high. The fact that this case would be a “battle of the experts” at trial made it expensive. The Plaintiff faces owing the defendant for taxable costs if they lose.
The court must determine the likelihood of success at the outset. J.E. Stack v. Lewis, 641 So.2d 969 (Fla. 1st DCA 1994).
The court cannot judge the risk from the point of view of possible settlement. The Plaintiff has to presume that Defendant was serious about its defenses. The fact that the Defendant chose to surrender unconditionally in November cannot now support there was no risk at the outset.
The Court has considered the other cases cited by the defense in opposition to the multiplier. However, Allstate v. Sarkis, 809 So.2d 6 (Fla. 5th DCA 2001) is not the law in this district. Island Hoppers, LTD v. Keith, 820 So.2d 967 (Fla. 4th DCA 2002) certifies conflict with Sarkis. While the 5th District opposes multipliers in proposal for settlement cases, the 4th District finds they are appropriate. Moreover, this is not a proposal for settlement case.
The Florida Supreme Court continues to recognize the usefulness of the contingency risk multiplier in court awarded fee cases to “level the playing field.” Bell v. U.S.B. Acquisition Co., Inc. 734 So. 2d 403 (Fla. 1999) states that “[a] primary rationale for the contingency risk multiplier is to provide access to competent counsel for those who could not otherwise afford it” and that “[w]e recognized in Rowe that the availability of attorney’s fees would have the effect of encouraging plaintiffs to bring meritorious claims that would not otherwise be economically feasible to bring on a non-contingent basis” (emphasis supplied).
Accordingly, based on the above findings, including that there was an even chance of success at the outset, the court awards a contingency risk multiplier in the amount of 1.5.
The Court finds that under F.S. §627.428 and F.S. §57.041 Plaintiff is entitled to an award of reasonable costs in this matter. The court finds that the total amount of costs reasonably expended is $4088.05.
When the expert witness in a fee hearing expects to be paid for his time in preparing and testifying, the court has no discretion to deny the attorney an expert witness fee. Stokus v. Phillips, 651 So. 2d 1244 (Fla. 2d DCA 1995). The court finds Plaintiff is entitled to $1,500.00 for this expert’s fee.
Plaintiff is entitled to prejudgment interest on attorney fees and costs from the date of resolution of the case. Quality Engineering Installation v. Higley South, Inc., 670 So. 2d 929 (Fla. 1996). The case was not resolved until Defendant agreed to pay benefits and interest on November 4, 2002. Thus, prejudgment interest on attorneys fees and costs shall accrue interest at the rate of 9% from that date.
Based on the above, the court finds and it is ORDERED AND ADJUDGED that the reasonable attorneys fees, legal assistant fees and taxable costs in this case are:
A. Attorney time of 60 hours for Diego C. Asencio (number of hours reasonably and necessarily expended) X $300 per hour (reasonable hourly rate) = $18,000.00 (Loadstar) X 1.5 (Contingency Risk Multiplier) = $27000.00 total attorneys fees.
B. Attorney time of 2 hours for Robert Critton (number of hours reasonably and necessarily expended) X $250 per hour (reasonable hourly rate) = $500 (Loadstar) X 1.5 (Contingency Risk Multiplier) = $750 total attorneys fees.
C. Paralegal time of 1.5 hours for Bobby McKenna (number of hours reasonably and necessarily expended) X $90 per hour (reasonable hourly rate) = $135 (Loadstar) X 1.5 (Contingency Risk Multiplier) = $202.50 total legal assistant fees.
D. Total costs of $4088.05.
E. Expert witness fees for Mr. Luckman of $1500.
F. Total fees and costs of $32040.55 shall accrue interest from November 4, 2002 to December 31, 2002 at the rate of 9% (per diem of $7.90 for 58 days = $458.22) and from January 1, 2003 to April 16, 2003 at the rate of 6% (per diem of $5.26 for 106 days = $558.29 for a total of $1,016.51. Expert witness fees of Mr. Luckman were not incurred until the date of the hearing and should not have interest applied in the same manner.
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