11 Fla. L. Weekly Supp. 659a
Attorney’s fees — Insurance — Personal injury protection — Hourly rate of $200 is awarded — Contingency risk multiplier of 1.5 is awarded — Relevant market requires multiplier to obtain competent counsel, counsel was not able to mitigate risk of nonpayment, likelihood of success for provider was even at outset, and consequences of loss for provider were high since insured had previous accidents and accident at issue was low-impact accident with minor damage to vehicle such that case would be battle of experts — Expert witness fee and costs awarded
BACK TO HEALTH OF SOUTH FLORIDA, INC. a/a/o Iret Kraham, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. M2-02-024318RJ. April 14, 2004. Peter M. Evans, Judge. Counsel: Mary-Margaret Warren, Wites, Kapetan & Friedland, P.A., Deerfield Beach, for Plaintiff. Howard Sparler III, Williams, Leininger & Cosby, P.A., for Defendant.
ORDER AND FINAL JUDGEMENT FOR ATTORNEY’S FEES AND COSTS
THIS CAUSE having come to beheard on 03/31/04, on Plaintiff, Back to Health of South Florida, Inc.’s Motion for Amount of Attorney’s Fees and Costs and the Court, having heard argument of counsel, the evidence presented at the hearing, testimony from expert witnesses and having been otherwise fully advised in the premises, it is hereby
ORDERED and ADJUDGED as follows:
1. This Court finds that Wites, Kapetan & Friedland, P.A., and Mary-Margaret Warren, Esq. are entitled to recover a reasonable attorney’s fee from Defendant, Progressive Express Insurance Company pursuant to Florida Statute §627.736 and§627.428.
2. This Court has considered all of the factors enumerated in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), Rule 4-1.5, Rules Regulating the Florida Bar. Specifically, this Court finds that counsel for Plaintiff reasonably expended 127.5 hours in the prosecution of this breach of contract (PIP) lawsuit. This finding is based upon the Affidavit of Attorney’s Fees and Costs filed by Mary-Margaret Warren, Esq., with this Court and the testimony from expert witnesses at the fee hearing.
3. Pursuant to Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985) and the factors enumerated in the Rule 4-1.5, Rules Regulating the Florida Bar, this Court finds that Mary-Margaret Warren, Esq. is entitled to be compensated at the rate of $200.00 per hour for her time. This finding is based upon evidence presented concerning fees customarily charged in Palm Beach County by lawyers of reasonably comparable skill, experience and reputation for the quality of legal services performed in this case, the time limitations imposed by the circumstances, the nature and length of the professional relationship between Plaintiff and counsel and the experience, reputation, and ability of Mary-Margaret Warren, Esq.
4. Pursuant to Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), this Court finds that the lodestar, thenumber of hours reasonably expended (127.5) multiplied by the reasonable hourly rate of $200.00 per hour, is $25,500.00.
5. This Court finds that pursuant to Plaintiff’s Contingency Fee Retainer agreement between Plaintiff and counsel, Mary-Margaret Warren, Esq. for the law firm of Wites, Kapetan & Friedland, P.A. was employed on a pure contingency basis and consequently, this Court must consider a contingency risk factor (multiplier) since it is awarding a statutorily-directed reasonable attorney fee (pursuant to Florida Statute §627.428).
6. This Court has considered all of the factors enumerated in Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990). Specifically, this Court finds that this is a “category two case.” The Court finds that for this case, the relevant market did require a contingency fee multiplier to obtain competent counsel, and that counsel for Plaintiff was not able to mitigate the risk of nonpayment of a fee in any way.
7. This Court has considered all of the factors enumerated in State Farm Fire & Casualty v. Palma, 555 So.2d 836 (Fla. 1990) and 629 So.2d 830 (Fla. 1993). Specifically, the fee agreement between Plaintiff and counsel in this case constituted a pure contingency fee arrangement, and the amount of the fee was not to be determined by the amount of the recovery.
8. This Court finds that at the outset the likelihood of success in this case for the Plaintiff was 50/50. The consequences to the Plaintiff of a loss were high. The following facts were considered by this Court: the insured had previous accidents; the accident in the instant case was a low-impact accident with minor damage to insured’s vehicle; and this case would be a “battle of the experts” involving CPT coding issues. This Court finds that contingency fee multipliers are having the effect they were intended to have by encouraging attorneys to accept personal injury protection cases. This ruling is consistent with this Court’s previous ruling in Dejoinville v. Progressive Express Insurance Company, 10 Fla. L. Weekly Supp. 452 (Fla. Palm Bch. Cty. 2003, Judge Peter Evans).
9. Consequently, pursuant to the foregoing cited authorities, this Court finds that a multiplier is applicable in this case. This Court hereby determines sitting in its factual finding capacity, based upon its consideration of the facts set forth above, that the Plaintiff at the outset of this matter had at best, a 50% chance of success. This Court determines that the “lodestar”fee amount in this case of $25,500.00 is entitled to enhancement by a contingency risk factor multiplier of 1.5 based upon the factors enumerated above and argued at the hearing for a total fee award of $38,250.00.
10. This Court has considered Florida Statute, §92.231 and Stokus v. Phillips, 651 So.2d 1244 (Fla. 2d DCA 1995). The Court finds that Plaintiff’s expert witness, Charles Beckert, Esq., expected to be compensated for the services he rendered in this case. This Court finds that a reasonable amount of time expended by Plaintiff’s expert witness in this case is 6 hours and that a reasonable expert witness fee is $200.00 per hour. Consequently, Charles Beckert, Esq. is entitled to be compensated for his expert witness services rendered in this matter in the amount of $1200.00.
11. This Court finds that Plaintiff’s counsel is entitled to taxable costs in the amount of $2183.44.
12. A total judgment amount of attorney fees, costs, and expert fees in the amount of $41,633.44, is hereby entered in favor of Mary-Margaret Warren, Esq. on behalf of Wites, Kapetan & Friedland, P.A. against Progressive Express Insurance Company, for which let execution issue and upon which post judgment interest at the rate of 7% shall accrue from this day.
13. This Court reserves jurisdiction to enforce this Final Judgment, as well as any previous Judgments and/or Orders in this matter, and todo any and all other acts necessary in this cause.
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