10 Fla. L. Weekly Supp. 655a
Insurance — Personal injury protection — Attorney’s fees — Contingency risk multiplier — Fact that exposure of miscalculation following adjuster’s deposition increased likelihood of success does not affect award of multiplier, which is based on likelihood of success at outset of case when miscalculation was obscure — Given strength of insurer’s PPO/HMO defense, likelihood of success at outset was less than 50% — Limited pool of attorney’s conversant with PPO/HMO defense along with prospect of protracted and uncompensated attorney’s fees litigation, among other factors, indicates multiplier of 2 is essential for medical provider to obtain effective counsel
TITUSVILLE TOTAL HEALTHCARE (a/a/o ROBBIE MILBERT), Plaintiff, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Brevard County. Case No. 05-2001-SC-027086. June 19, 2003. David E. Silverman, Judge. Counsel: Kimberly P. Simoes, Wyatt & Tolbert, Daytona Beach, for Plaintiff. Shannon H. Campbell, Fowler White Boggs Banker, P.A., Tampa, for Defendant.ORDER
This cause coming before this Court on April 30, 2003 on the Motion for Rehearing filed by the defendant and the parties having appeared on due notice and the Court having considered counsels submissions and argument and having been otherwise advised in the premises,
The Court finds as a matter of fact and concludes as a matter of law, as follows.
The Motion for Rehearing challenges the, “number of hours [and] the award of a multiplier,” but omits any written reference to the hourly rate of $250.00, the paralegal fees, the expert witness fee or the costs.The Number of Hours
The number of hours is amply supported by the plaintiff counsel’s time records which are summarized in Ms Simoes’ affidavit stating that, “38.30 hours cumulative time spent attorney time,” was spent on behalf of Titusville Total Healthcare.” Plaintiff’s expert Steven Charpentier, Esq. also opined that those hours were actually and reasonably spent. The defendant’s expert appeared to agree, for the most part, that the time was actually spent, but merely disputed the reasonableness of certain hours or activities. The court resolved that dispute in favor of the plaintiff’s counsel and that resolution is confirmed by the approximately 30 hours of attorney time invested in the case by the insurer’s counsel.The Multiplier
The multiplier was properly awarded. The defendant seizes upon the miscalculation exposed following the adjuster’s deposition to argue an increased the likelihood of success. The fact that the miscalculation could be discovered later misses the mark. The miscalculation was obscure and not readily identifiable at the outset of the case, which is where the likelihood of success should be measured.
In addition to the PPO defense, the insurer advanced five other impressive affirmative defenses which were explained in the Response to Interrogatory No. 8, Answers to Interrogatories November 6, 2001 and filed by the defendant reads. That response, made under oath, states in pertinent part that,
“Titusville Total Healthcare failed to comply with the PIP statutes and/or the Policy by submitting bills for services which were unreasonable, unnecessary or unrelated to the subject motor vehicle accident. Neither the Plaintiff nor Titusville Total Healthcare, is entitled to reimbursement for such charges. . .”
“The Plaintiff failed to perform conditions precedent to receiving payment of benefits from Nationwide by failing to provide proper written notice of the loss including proper documentation for its charges.”
“The medical billings submitted by the insured’s health care providers have been appropriately reduced or denied because they were unnecessary and/or exceeded the reasonable amount for the procedure in the region where the service was provided as stated in section 627.736(1).”
The defendant has taken the position that the likelihood of success cannot be calculated and, therefore, a multiplier can never be granted to the plaintiff. The plaintiff propounded a request for admission to the effect that,
“At the outset of this case, NATIONWIDE MUTUAL INSURANCE COMPANY had a greater than 50/50 likelihood of prevailing on one or more of its defense(s).”
The defendant’s response, filed January 22, 2002, is revealing.
“NATIONWIDE can neither admit nor deny because it requires clairvoyance not known to be possessed by any human beings.”
While this Court does not purport to possess extraordinary powers of precognition or clairvoyance, the Florida Supreme Court’s decision in Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828, 832 (Fla.1990) requires the Court to make precisely such a determination.
If the trial court determines that success was more likely than not at the outset, it may apply a multiplier of 1 to 1.5; if the trial court determines that the likelihood of success was approximately even at the outset, the trial judge may apply a multiplier of 1.5 to 2.0; and if the trial court determines that success was unlikely at the outset of the case, it may apply a multiplier of 2.0 to 2.5.
Even assuming plaintiff’s counsel should have disregarded the defendant’s assertions and defenses somehow discerned that the adjusted had failed to calculate the payment correctly, overcoming such subtle carelessness is not necessarily easy. It was only through the efficient and thorough advocacy of the plaintiff’s attorney that the plaintiff was able to promptly obtain payment of the benefits.
Therefore, the Court reiterates its finding that, given the strength of the PPO/HMO defense, the likelihood of success was less than 50%.
The Court in Discovery Experimental and Development, Inc. v. Department of Health, 824 So.2d 195 (Fla. App. 2 Dist., 2002) observed that the awarding of a multiplier is intended to promote access to the courts through the retention of effective counsel.
In Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1151 (Fla. 1985), the supreme court cited increased access to courts and competent counsel as compelling policy rationales for enhancing fee awards by use of contingency risk multipliers. The court reasoned that the contingency risk factor is important to plaintiffs in personal injury cases because it facilitates access to the court system and the services of attorneys who might otherwise be unwilling to accept plaintiffs’ cases. Id. However, risk multipliers should not be used “unless the applicant can establish that without an adjustment for risk the prevailing party ‘would have faced substantial difficulties in finding counsel in the local or other relevant market.’ ” Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828, 832 (Fla. 1990) (quoting Pa. v. Del. Valley Citizens’ Council for Clean Air, 483 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987)).
The limited pool of attorneys conversant with the PPO/HMO defense together with the daunting prospect of potentially protracted and uncompensated attorney’s fees litigation, among other appropriate factors, indicates that a multiplier of 2 is essential for the plaintiff to be able to obtain effective counsel.
It is hereby ORDERED and ADJUDGED that the Motion for Rehearing is denied and disposed.
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