11 Fla. L. Weekly Supp. 1075a
Attorney’s fees — Insurance — Personal injury protection
CIRA BRITO, as natural parent and guardian of JANET BRITO, a minor, and MICHAEL ROSE, M.D., and DAVID LEHRMAN, M.D., assignee of Janet Brito, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 02-8121 CC 25 (2). August 31, 2004. Teretha Lundy Thomas, Judge. Counsel: Kevin W. Whitehead, Downs, Brill, Whitehead, P.A., Coral Gables Dean Mitchell.
ORDER AND FINAL JUDGMENT FOR ATTORNEY’S FEES AND COST
THIS CAUSE having come to be heard on 8/31/04 after due notice to all parties, on Plaintiff’s, CIRA BRITO, as natural parent and guardian of JANET BRITO, a minor, and MICHAEL ROSE, M.D., and DAVID LEHRMAN, M.D., assignee of Janet Brito’s, Motion to Determine Amount of Attorney’s Fees and Costs, the Court having reviewed the record, 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 ORDERED AND ADJUDGED as follows:
1. This Court finds that Downs & Associates, P.A., Kevin W. Whitehead, Esq., and Dean Mitchell, 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) and Rule 4-1.5, Rules Regulating the Florida Bar. Specifically, this Court finds that counsel for Plaintiff, Kevin W. Whitehead, Esq., reasonably expended 83.5 hours in the prosecution of this breach of contract (PIP) lawsuit, and Dean Mitchell, Esq., reasonably expended 53.8 hours in the prosecution of this breach of contract (PIP) lawsuit. This finding is based upon the Affidavit with attached time sheets filed by Kevin W. Whitehead, Esq., with this Court, time sheets filed by Dean Mitchell, Esq. with the Court, and the testimony from Kevin W. Whitehead, Esq., Dean Mitchell, Esq., and 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 Rule 4-1.5, Rules Regulating the Florida Bar, this Court finds that Kevin W. Whitehead, Esq. is entitled to be compensated at the rate of $300.00 per hour for his time, and Dean Mitchell, Esq., is entitled to be compensated at the rate of $350 per hour for his time. This finding is based upon evidence presented concerning fees customarily charged in Miami-Dade 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, and the reputation and ability of Kevin W. Whitehead, Esq. and Dean Mitchell, Esq.
4. Pursuant to Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), this Court finds that the lodestar, the number of hours reasonably expended by Kevin W. Whitehead, Esq. 83.5 multiplied by the reasonable hourly rate of $300.00 for Kevin Whitehead, Esq. is $25,050 and the number of hours reasonably expended by Dean Mitchell, Esq. 53.8 multiplied by the reasonable hourly rate of $350 for Dean Mitchell is $18,830.
5. This Court finds that pursuant to Plaintiff’s Contingency Fee Retainer agreement between Plaintiffs and their counsel, Kevin W. Whitehead, Esq. and Dean Mitchell, Esq., 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” (principally tort and contract cases). The Court finds that for this case, the relevant market did not require a contingency fee multiplier to obtain competent counsel, even though counsel for Plaintiff was unable to mitigate the risk of nonpayment 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, even though the amount of the fee was not to be determined by the amount of the recovery.
8. Consequently, pursuant to the foregoing cited authorities, this Court finds that a multiplier is not applicable in this case.
9. This Court has considered Florida Statute, §92.231 and Stokus v. Phillips, 651 So.2d 1244 (Fla. 2d DCA 1995). The Court finds that Plaintiffs expert witness, Virginia Best, Esq., expected to be compensated for the services she rendered in this case. This Court finds that a reasonable amount of time expended by Plaintiff’s expert witness in this case is 2 hours and that a reasonable expert witness fee is $300 per hour. Consequently, Virginia Best, Esq. is entitled to be compensated for her expert witness services rendered in this matter in the amount of $600.
10. This Court finds that Plaintiff’s counsel was entitled to collect a fee award from it on 5/25/04, the date of the settlement between the parties. Consequently, pursuant to Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So.2d 929 (Fla. 1996), Plaintiff’s counsel is entitled to collect 7% interest per annum on the fee award of $43,880 from 5/25/04 through today for interest in the amount of $807.84.
11. This Court finds that Plaintiff’s counsel is entitled to taxable costs in the amount of $872.10, all of which the Court determines to be taxable against Defendant.
12. For which let execution issue, the Plaintiff’s counsel, Downs & Associates, Kevin W. Whitehead, and Dean Mitchell, Esq., is awarded a total amount of $46,159.94 against the Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, 3600 West
Commercial Blvd., Lauderdale Lakes, FL 33309.
13. This Court finds that the Plaintiffs’ counsel are entitled to collect 7% interest per annum on the total award of $46,159.94 from the date of this Final Judgment through the date the total award made payable to Downs Brill Whitehead, Trust Account, is delivered to Kevin W. Whitehead, Esquire at Downs Brill Whitehead, 255 University Drive, Coral Gables, FL 33134.
14. This Court reserves jurisdiction to enforce this Final Judgment, as well as any previous Judgments and/or Orders in this matter, and to do any and all other acts necessary in this cause.
* * *
