11 Fla. L. Weekly Supp. 586a
Attorney’s fees — Insurance — Personal injury protection — Hourly rate — Court rejects claim that higher hourly rate applicable outside community should be awarded due to unavailability of attorneys within community who could handle Beech Street issue, finding that despite absence of district court of appeal ruling on issue any attorney that does PIP work could easily determine the issue from the numerous lower court opinions and no particular expertise is needed to read and analyze statute pertaining to preferred provider insurance plans — Higher hourly rate is awarded for time spent defending against motion to disqualify counsel, which was more complicated and time-intensive than Beech Street issue — Hours expended — Where pleadings and discovery were identical in multiple Beech Street claims, court concludes that no additional time beyond time spent on one case was necessary to conclude all cases — Contingency risk multiplier — Beech Street cases, in which providers seek compensation beyond fee they agreed to accept for services, should not be categorized as public policy enforcement cases since benefit is to provider not consumer, and it is not public policy of state to encourage more costly health care — Cases are more appropriately categorized as contract disputes, and factors to consider in awarding multiplier should be factors used for contract and tort disputes — Where law firm advertised throughout state to obtain providers as clients on Beech Street issue, such that there was no search by provider for competent counsel or financial roadblock to accessing courts, and any risk of nonpayment in particular case was ameliorated by volume of cases handled by firm and opportunity to select venues in which lower courts had already ruled in favor of provider’s position on issue, request for multiplier is denied — Expert witness fee and costs awarded
ARTHUR A. LABELLA, D.C. (Sambataro) (Lowman) (Theodore), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE, Defendant. County Court, 19th Judicial Circuit in and for Indian River County. Case Nos. 2003-0850, 0694, 0627 SP 07. March 8, 2004. Joe Wild, Judge. Counsel: Michelle Muir. Michael C. George, George & Peduzzi, P.A., West Palm Beach.
CONSOLIDATED ORDER DETERMINING AMOUNT OF FEES AND COSTS
The Court heard several cases at a combined hearing concerning the amount of fees and costs to be awarded to the plaintiff after the settlement of four civil cases. The Court took the testimony of several witnesses, and received in evidence the time sheets and other documents and correspondence relating to the issue. Two of the witnesses were expert witnesses1 who opined on the reasonableness of the hours requested and the prevailing fee rate. The plaintiff is requesting a multiplier for the three cases that are the subject of this order.
The undersigned has presided over civil cases in Indian River County for over fourteen years, and personally observed the legal work done on these cases. The cases that are the subject of this order are PIP cases which involve a Beech Street issue. The other case involved a standard PIP case. Interestingly, the time billed for the different cases was identical in most all respects. This is obviously due to a computer program which assigns a standard time for standard activities.
For instance, the first nine entries of the time sheets in all four cases are identical. The initial “client meeting; review file; open case” entry is presented as taking 1.2 hours in each case. Drafting the complaint, setting up “trialworks,” reviewing the file and calculating interest took the exact same time in each case, and occurred in the exact same chronological order. In fact, in the three Beech Street cases there is an entry for preparing interrogatories which indicates that .3 hours was expended. The standard PIP case also contains an entry for preparing interrogatories for .3 hours. There are several other instances which confirm that a standard time is used for a standard procedure. The Court recognizes the good business practice of formulating these times and entries in a standard fashion. However, in the context of a fee hearing, the Court must determine what is reasonable in a particular case, which must have some correlation to the actual time spent.
The testimony at the hearing revealed that the client was signed on for numerous claims2, most of which involved Beech Street issues. The attorney testified that she did not meet with the client in person. The total amount of the three claims was approximately $3,000.00.3 Almost all court hearings were combined to include all three cases, in particular the Motion to Disqualify, the scheduled Motion for Summary Judgment and the scheduled trial date. The client made it clear to the attorney that he would not go to trial and he was only interested in a settlement. Since the issue was the same in each case, all cases would therefore be resolved in the same way.4 All three cases were filed within 30 days of each other. All three cases were resolved on the same date.
The Court finds that the cases contained a legal issue which, at the time of filing, had not been addressed by a District Court of Appeal but had been addressed by numerous lower courts in Florida. The legal issue is not complicated, however, it remains unresolved. The cases do require the attorney to have knowledge in the area of PIP law. A reasonable fee in this community for a case of this type would be $175.00 per hour. The experts testified to hourly rates ranging from $200 per hour up to $275 per hour. Neither expert resides in Indian River County, nor have they appeared before this Court. The Court rejects the contention of the plaintiff that no attorneys are available in Indian River County that can handle this issue. Any attorney that does PIP work can easily determine the Beech Street issue from the numerous lower court opinions. No particular expertise is needed to read and analyze the statutory section pertaining to PPO insurance plans.
The defendant filed a motion to disqualify the plaintiff’s law firm which did require some specialized work by the plaintiff’s law firm. Apparently, the defendant has filed numerous motions to disqualify throughout Florida. This issue is more complicated and time-intensive than the Beech Street issue. On that part of the cases, the plaintiff’s attorney for that issue is entitled to legal fees at the rate of $250.00 per hour.
The Court has correlated the time sheet entries in each case and has also compared the complaints, motions and other court documents that were filed in each case. Without going into the specifics, ad nasuem, the conclusion is inescapable that almost no additional time was necessary, beyond the time spent on one case, to bring these cases to conclusion. For instance, the complaints are identical, other than the changes in the insured’s name and the date of the vehicle accident. Similarly, the requests to produce, requests for admission, motions for summary judgment, etc., are all identical. Therefore, there is no way the Court can conclude that, for example, it was reasonably necessary to expend one hour and forty-eight minutes to draft the three complaints in these cases, or that it took three hours and thirty-six minutes to open the three cases.
The Court finds that the time reasonably spent on the three cases, exclusive of the disqualification issue, totals 55 hours. The time spent on the disqualification issue totals 12.8 hours. Using the appropriate hourly rate for each time segment, the total award for fees equals $12,825.00.
The next issue involves the expert witness called by the plaintiff. As noted earlier, this Court does not believe that experts should be required.5 However, at this point in time the cases do require an expert, and the plaintiff was forced to present an expert at the fee hearing. A reasonable fee for the expert is found to be $250.00 per hour. The reasonable time spent by the expert is found to be 4 hours, which includes testifying in court. The total fee award for the expert is $1,000.00.
The final issue concerns the applicability of a multiplier. The contract between the plaintiff and the law firm contemplates a fee contingent on the outcome of the case.6 The entitlement to the fee derives from a statutory provision. A risk multiplier can be used in several types of cases, two of which are public policy enforcement cases, or tort and contract lawsuits. Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990). Generally, a PIP action would fall into the category of public policy enforcement as a consumer protection issue. This case, though, highlights why cases cannot always be easily classified. In these cases, the doctor signed an agreement for a particular fee to be paid for a particular service. The particular service was provided and the particular fee was paid. The issue arises because the doctor now does not believe that he received the benefit of the bargain that he anticipated by signing the contract with Beech Street.7 Many courts in Florida have invalidated the contract by use of the PIP statutes, and not on breach of contract grounds. The resulting invalidation, which benefits the medical providers, certainly does not benefit the consumer.8 Therefore, it is difficult to see why this case should be categorized as one where the government wishes to “encourage individual citizens to bring civil actions that enforce statutory policy.” Quanstrom, at 833. This Court does not believe that the public policy of the State of Florida is to encourage more costly health care.
The issue more appropriately belongs in the category of a contract dispute between the insurance company, by way of Beech Street, and the doctor. In these Beech Street cases, the factors to consider in awarding a multiplier should be the factors used for contract and tort disputes. “A primary rationale for the contingency risk multiplier is to provide access to competent counsel for those who could not afford it. Multipliers are intended to level the playing field, to provide litigants, who might otherwise lack the resources, to obtain competent counsel, as a means of access to the legal system.” Quanstrom, at 834. However, there was no search by the plaintiff to find competent counsel to handle this issue, nor a financial resource roadblock to accessing the courts. In fact, the opposite was true. The evidence, at both the fee hearing and the disqualification hearing, established that the law firm representing the plaintiff advertised throughout the State of Florida in an effort to obtain medical providers as clients on the Beech Street issue.
Furthermore, any risk of non-payment in any particular case was ameliorated by the volume of other cases being handled by the law firm on behalf of medical providers. See Sun Bank of Ocala v. Ford, 564 So.2d 1078, 1079 (Fla. 1990). As pointed out by the defendant’s expert, the plaintiff had a choice of venues to file, many of which had already ruled in favor of the plaintiff’s position on the Beech Street issue. The other factors found in Fla. Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), also do not support the use of a risk multiplier. The plaintiff’s request for a multiplier is denied.
The total fee award, including the expert fee, is $13.825.00. The costs requested are also allowable. The plaintiff and defendant shall consult to determine whether any further order is necessary to implement this finding. If so, the plaintiff should submit such order to the Court.
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1The Court is in agreement with the sentiments of the panel which issued the opinion in Island Hoppers, Ltd. v. Keith, 820So.2d 967 (Fla. 4th DCA 2002). The Court is not bound by expert testimony and the requirement of expert testimony in fee hearings should be eliminated.
2The firm representing the plaintiff advertises by letter and by booths at medical conventions/seminars in an attempt to obtain doctors who are seeking reimbursement from insurance companies.
3Each complaint alleged “damages that exceed $100.00, but do not exceed $1,000.00.”
4At the time of the filing of the case, there were no appellate court opinions on the issue. While the case was pending, the 5th DCA ruled on the issue. The ruling was favorable to the plaintiff. After the case was settled, and prior to the fee hearing, the 3rd DCA ruled on the same issue, this time in favor of the defendant’s position. This Court agrees with the opinion of the 3rd DCA, although would have ruled with the 5th DCA on summary judgment due to that being the only appellate opinion issued at the time. The 5th DCA opinion, obviously, was a factor in the case being settled.
5The testimony of the expert presented by the plaintiff did not assist the Court in making its determination. The Court found the defendant’s expert to be more reasonable, but even the defendant’s expert’s testimony was unnecessary in the formulation of the Court’s decision.
6Section 3 of the “Special Co-Counsel Contingency Contract,” plaintiff’s Exhibit #1.
7This Court has not yet seen a Beech Street contract, and has no opinion on whether a medical provider should be bound by that contract. The Court does believe, however, that a Beech Street contract should not be invalidated pursuant to the PIP statutes.
8The cost of the consumer’s medical treatment increases, which results in quicker exhaustion of insurance benefits.
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