11 Fla. L. Weekly Supp. 754b
Attorney’s fees — Insurance — Personal injury protection — Contingency risk multiplier — Where provider’s attorney undertook representation pursuant to pure contingency fee agreement, attorney was not able to mitigate risk of nonpayment, market requires multiplier to obtain competent counsel in like cases, and provider’s likelihood of success at outset of case was approximately even, multiplier of 1.5 is appropriate — Costs, prejudgment interest, and expert witness fee are awarded
CENTRAL FLORIDA PHYSIATRISTS, P.A., by Assignment of Benefit from SUZANNE M. OWEN, Plaintiff, vs. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 01-SC-2856-19-U. May 25, 2004. Donald L. Marblestone, Judge. Counsel: Donald A. Myers, Jr., Bailey & Myers, P.A., Maitland, for Plaintiff. Shannon Campbell, Fowler, White, Boggs & Banker, P.A., Tampa.
FINAL JUDGMENT AWARDING ATTORNEYS’ FEES AND COSTS
THIS CAUSE came to be heard on April 26, 2004, upon the Plaintiff’s Motion to Tax Attorneys’ Fees and Costs Pursuant to Section 627.428, Florida Statutes, and the Court having heard testimony and argument, and having received evidence and examined the Court file, the Court makes the following findings:
1. This case involved a claim for PIP benefits arising out of an automobile accident of December 7, 2000. The insured, Suzanne Owen, was alleged to have sustained injuries arising out of the accident, and was referred by her treating physician to the Plaintiff, Central Florida Physiatrists, P.A. for diagnostic testing. The insured assigned her PIP insurance benefits to the Plaintiff and underwent diagnostic testing on May 3, 2001. The Plaintiff billed the Defendant, Nationwide Mutual Fire Insurance Company, for the diagnostic testing rendered. The Defendant refused to pay the bill for the diagnostic testing citing a peer review report (medical record review) from a board certified neurologist, Denise Griffin, M.D., finding that the diagnostic testing was not reasonable, medically necessary or related to the automobile accident. Thereafter, Plaintiff filed this suit seeking to recover the amounts due, together with interest. Following the filing of suit and substantial discovery, the Defendant agreed to settle the claim. The Defendant stipulated that the Plaintiff is entitled to the award of its reasonable attorneys’ fees and costs.
2. The Court has based its decision on and applied the factors contained in Standard Guaranty Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990); Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985); and Bell v. U.S.B. Acquisition Company, Inc., 734 So.2d 403 (Fla. 1999).
3. NUMBER OF HOURS: The Plaintiff’s counsel, Donald A. Myers, Jr., Esquire, of Bailey & Myers, P.A., reasonably expended 33.6 hours in representing the Plaintiff in this cause.
4. HOURLY RATE: The parties stipulated that a reasonable hourly rate for Mr. Myers in this case is $300.00.
5. CONTINGENCY RISK FACTOR:The Court has considered all of the factors and criteria set forth in Standard Guaranty Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990); Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985); and Bell v. U.S.B. Acquisition Company, Inc., 734 So.2d 403 (Fla. 1999) and other applicable case law, and evidence adduced thereon, as they relate to the application of a contingency risk multiplier to the Plaintiff’s attorneys’ fees in this case. The Court specifically finds that:
a. Plaintiff’s counsel undertook the representation of the Plaintiff pursuant to a pure contingency fee agreement as defined in State Farm v. Palma, 555 So.2d 836 (Fla. 1990).
b. Plaintiff’s counsel was not able to mitigate the risk of non-payment in any way.
c. the market in this jurisdiction requires a contingency risk multiplier to obtain competent counsel in cases like the instant case;
d. that the Plaintiff has met its burden of proof with respect to the entitlement to a multiplier; and
e. taking into consideration the evidence, as well as the above law, the Court finds that the Plaintiff s chances of success at the outset or onset of this case were:
___ more likely than not (x1.0-1.5)
X approximately even (x 1.5-2.0).
___ unlikely (x2.0-2.5)
Accordingly, a contingency risk multiplier of 1.5 is appropriate and applicable.
6. That based upon this Court’s determination, the total attorneys’ fees that the Plaintiff is entitled to recover from the Defendant for the services of its attorney, Donald A. Myers, Jr. of Bailey & Myers, P.A., before this Court is 33.6hours x $300.00 (hourly rate) x 1.5 (contingency risk multiplier) for a total of $15,120.00.
7. The parties stipulated that the Plaintiff’s counsel, Donald A. Myers, Jr. of Bailey & Myers, P.A., incurred reasonable costs in the amount of $1,650.60 during their representation of the Plaintiff in this case.
8. That prejudgment interest is due to Plaintiff’s counsel on the attorneys’ fees and costs from August 22, 2003 (the date of settlement of the underlying claim), until the entry of this final judgment. Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So.2d 929 (Fla. 1996); and Boulis v. Florida Department of Transportation, 733 So.2d 959 (Fla. 1999).
9. Plaintiff’s expert witness on attorneys’ fees, Kevin Weiss, Esquire, is entitled to be compensated for the time expended in preparing to testify and testifying in this case. Mr. Weiss reasonably expended 4 hours in this case, and a reasonable hourly rate for Mr. Weiss is $300.00 per hour, for a total expert fee of $1,200.00. See Travieso v. Travieso, 474 So.2d 1184 (Fla. 1985); Stokus v. Phillips, 651 So.2d 1244 (Fla. 2d DCA 1995); and, Mangel v. Bob Dance Dodge, Inc., 739 So.2d 720 (Fla. 5th DCA 1999).
WHEREFORE, it is hereby ORDERED AND ADJUDGED:
1. That Plaintiff’s Motion to Tax Attorneys’ Fees and Costs of Donald A. Myers, Jr. of Bailey & Myers, P.A. is hereby GRANTED.
2. That Plaintiff’s counsel, Bailey & Myers, P.A., shall have and recover from the Defendant, Nationwide Mutual Fire Insurance Company, a reasonable attorneys’ fee in the amount of $15,120.00, costs in the amount of $1,650.60, and prejudgment interest on both the attorneys’ fee and costs at the rate of Seven Percent (7%) per annum from August 22, 2003 through April 26, 2004, in the amount of $797.64, for the total sum of $17,568.24, that shall bear interest at the rate of 7% per annum until payment in full of the judgment, for which let execution issue forthwith.
3. Plaintiff’s expert witness on attorney’s fees, Kevin Weiss, Esquire, shall have and recover from the Defendant, Nationwide Mutual Fire Insurance Company, fees in the amount of $1,200.00 for expert time expended in this case, that shall bear interest at the rate of 7% per annum until payment in full, for which let execution issue forthwith.
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