11 Fla. L. Weekly Supp. 573a
NOT FINAL VERSION OF OPINION
Subsequent Changes at 11 Fla. L. Weekly Supp. 661a
Attorney’s fees — Insurance — Personal injury protection — Hours expended — Medical provider’s counsel is not entitled to attorney’s fees for time spent litigating amount of fees — Hourly rates of $300, $275, and $225 are awarded based on attorneys’ qualifications — Costs and expert witness fee awarded — Contingency risk multiplier — Provider has not shown that relevant market required multiplier to obtain competent counsel where evidence shows that there are other attorneys in area who would accept representation without multiplier and that provider’s counsel actively marketed himself to providers to secure representation regarding issues in case — Evidence — Hearsay — Testimony of provider’s expert regarding conversations between expert and provider’s office manager about efforts provider had undertaken to obtain counsel, including conversations between office manager and various attorneys who allegedly refused to accept representation, is inadmissible double hearsay — Provider’s counsel failed to show inability to mitigate risk of nonpayment where counsel would be able to mitigate risk of nonpayment in this case by achieving successful results or settlements in 300 other PIP cases in which counsel represents same provider — Application of multiplier is not appropriate
CRAIG H. LICHTBLAU, M.D., P.A., (Anthony Little), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County, South County Civil Division “RD”. Case No. 2002SS019096. April 21, 2004. Jonathan D. Gerber, Judge. Counsel: Charles J. Kane, Kane & Kane, Boca Raton, for Plaintiff. Michael Davies, Green, Murphy & Murphy, P.A., Fort Lauderdale, for Defendant.
ORDER ON PLAINTIFF’S MOTION TO TAX ATTORNEYS’ FEES AND LEGAL ASSISTANT FEES AND COSTS
THIS CAUSE came before this Court on “Plaintiff’s Motion to Tax Attorneys’ Fees and Legal Assistant Fees and Costs.” This Court has reviewed the motion and the court file, has reviewed the parties’ evidence and arguments, and is otherwise fully advised in the premises.
Calculation of the Lodestar Fee
This case arose out of Plaintiff’s claim to recover assigned personal injury protection benefits from Defendant. Plaintiff prevailed on its motion for summary judgment and obtained a final judgment for the full claim amount of $601.06, plus prejudgment interest. Plaintiff now seeks to recover reasonable attorneys’ fees pursuant to Section 627.428(1), Florida Statutes. Plaintiff is not seeking to recover legal assistant fees. Plaintiff and Defendant have stipulated as to Plaintiff’s recovery of court costs.
In Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145, 1151-1152 (Fla. 1985), the Florida Supreme Court established the method for calculating a reasonable attorney’s fee: “the trial judge should (1) determine the number of hours reasonably expended on the litigation; (2) determine the reasonable hourly rate for this type of litigation; (3) multiply the result of (1) and (2); and (4) adjust the fee on the basis of the contingent nature of the litigation or the failure to prevail on a claim or claims.” The Court specified that courts of this state should utilize the following criteria in determining the reasonable number of hours and the reasonable hourly rate: (1) the time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. Id. at 1150. In Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828, 835 (Fla. 1990), the Florida Supreme Court reaffirmed the lodestar approach as the basic starting point.
Having considered the testimony of Plaintiff’s counsel, Plaintiff’s fee expert, and Defendant’s fee expert, as applied to the Rowe and Quanstrom lodestar criteria, as well as the parties’ arguments, this Court determines the following. The time and labor required was moderate given Defendant’s defense of the action. The questions involved were somewhat novel because they involved relatively current legal issues regarding the applicability of Section 627.736(10), Florida Statutes, and the viability of an alleged assignment from the insured to Plaintiff. Another issue was Defendant’s motion to disqualify Plaintiff’s counsel because of an alleged conflict in Plaintiff’s counsel having hired an associate who formerly worked for Defendant, although it is this Court’s understanding that the disqualification issue was litigated primarily in another case. Plaintiff’s counsel had the skill requisite to perform the legal service properly based on successful experience in related types of litigation in the past. Plaintiff’s counsel’s fee is within the range customarily charged in this locality for similar legal services. Plaintiff’s counsel obtained a successful result for his client. Plaintiff’s counsel had the experience, reputation and ability necessary to perform the services as stated above, and Plaintiff’s counsel accepted the representation on a contingent fee basis.
Based on the foregoing, this Court determines that, of the 40.6 hours which Plaintiff was seeking payment, the number of hours reasonably expended on the litigation was 31.3 hours, having deducted from Plaintiff’s counsel’s charges the 0.4 hours expended on February 26, 2003, 0.4 of the hours expended on May 13, 2003, and the 8.5 hours expended litigating the amount of attorney’s fees to be awarded pursuant to Section 627.428. Plaintiff’s counsel argued that he was entitled to recover fees for litigating the amount of attorney’s fees, relying upon Diaz v. SantaFe Healthcare, Inc., 642 So. 2d 765 (Fla. 1st DCA 1994). However, Plaintiff’s counsel is not entitled those fees as a matter of law. See State Farm Fire & Casualty Co. v. Palma, 629 So. 2d 830, 833 (Fla. 1993) (because time spent litigating the amount of fees under Section 627.428 inured solely to attorney’s benefit, they could not be considered services rendered in procuring full payment of judgment); Mediplex Construction of Florida, Inc. v. Schaub, 856 So. 2d 13, 14-15 (Fla. 4th DCA 2003) (disagreeing with Diaz and holding that Palma still applies). This Court further determines that Plaintiff’s counsel’s hourly rate of $300.00 for himself, $275.00 for his partner, and $225.00 for his associate are reasonable based on their qualifications in comparison to other attorneys in this market. Multiplying their respective hours times their hourly rates, this Court determines the lodestar fee should be $9,370.00.
The parties stipulated that Plaintiff was entitled to recover costs in the amount of $282.05. Plaintiff’s fee expert expended 9.3 hours on the litigation and charged an hourly rate of $300.00. This Court determines both of those amounts to be reasonable based on Plaintiff’s fee expert’s experience and qualifications to which he testified at the hearing, yielding an expert fee of $2,790.00.
Whether to Apply a Multiplier to the Lodestar Fee
In Quanstrom, supra, the Florida Supreme Court clarified the use of the contingency fee multiplier to the lodestar fee. The Court stated that, although a trial court must consider a contingency risk factor when awarding a statutorily-directed reasonable attorney fee, “the words ‘must consider’ do not mean ‘must apply,’ but mean ‘must consider whether or not to apply’ the contingency fee multiplier.” 555 So. 2d at 831. The Court then held that, with respect to contract cases, courts of this state should consider the following factors in determining whether a multiplier is necessary: “(1) whether the relevant market requires a contingency fee multiplier to obtain competent counsel; (2) whether the attorney was able to mitigate the risk of nonpayment in any way; and (3) whether any of the factors set forth in Rowe are applicable, especially, the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client.” Id. at 834. If the trial court determines that a multiplier is necessary, then the trial court should determine the amount of the multiplier as follows: “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.” Id.
Having considered the testimony of Plaintiff’s counsel, Plaintiff’s fee expert, and Defendant’s fee expert, as applied to the Quanstrom multiplier criteria, this Court determines that a multiplier would not be appropriate. Plaintiff has not shown, by the greater weight of the evidence, that the relevant market required a contingency fee multiplier for Plaintiff to obtain competent counsel. In sum, Plaintiff’s counsel and Plaintiff’s expert testified that Plaintiff’s counsel was the only attorney in this area who was willing to accept the representation based on the novelty of the issues involved, the high volume of Plaintiff’s cases, and the financial outlay which Plaintiff’s counsel would have to undertake to fund the litigation. Defendant’s fee expert, in sum, testified that there are other attorneys in this area who would have been willing to accept the representation without a multiplier, and that Plaintiff’s counsel actively marketed himself to practitioners like Plaintiff in an attempt to secure representation of cases involving the Section 627.736(10) and assignment issues. This Court considered the parties’ conflicting testimony to be even at best, thus preventing Plaintiff from satisfying its burden of proof by the greater weight of the evidence.
During the hearing on the motion, this Court reserved ruling on Defendant’s hearsay objection to Plaintiff’s expert’s testimony regarding conversations between Plaintiff’s expert and Plaintiff’s office manager regarding what efforts Plaintiff allegedly had undertaken to obtain counsel. This Court allowed Plaintiff’s expert to proffer the conversations as part of the record. Having reviewed the proffer, this Court sustains Defendant’s hearsay objection. This Court recognizes that, pursuant to Section 90.704, Florida Statutes, if the facts or data upon which an expert bases an opinion are those made known to the expert at or before the trial and are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence. However, an expert may not serve as a conduit for placing inadmissible evidence before the trier of fact. See, e.g., Nixon v. State, 694 So. 2d 157 (Fla. 4th DCA 1997). Plaintiff’s expert’s testimony contains double hearsay, that is, the conversation between Plaintiff’s expert and Plaintiff’s office manager, and the alleged conversations between Plaintiff’s office manager and various lawyers who allegedly refused to accept the representation. This Court adds that, if this Court had overruled Defendant’s hearsay objection and considered that testimony, this Court still would have determined that, weighing both sides’ evidence, the evidence would have remained even at best, and Plaintiff still would not have satisfied its burden of proof.
As for the second Quanstrom criteria, Plaintiff did not show, by the greater weight of the evidence, that Plaintiff’s attorney was unable to mitigate the risk of nonpayment in any way. In sum, Plaintiff’s counsel and Plaintiff’s expert testified that Plaintiff’s counsel did not receive any other types of cases from Plaintiff outside of the PIP arena and otherwise was not able to mitigate the risk of nonpayment. Defendant’s fee expert opined that because Plaintiff’s counsel received a high volume of cases from this Plaintiff, Plaintiff’s counsel would be able to mitigate the risk of nonpayment in this case by achieving successful results or settlements in the other cases. Again, this Court considered the parties’ conflicting testimony to be even at best, thus preventing Plaintiff from satisfying its burden of proof by the greater weight of the evidence. This Court also distinguishes this case from the case upon which Plaintiff relied, State Farm Mutual Automobile Ins. Co. v. Brock, 9 Fla. L. Weekly Supp. 212a (Fla. 9th Cir. 2001). In Brock, it appears the plaintiff was an individual insured with only one PIP case and her attorney’s high volume of cases was from the attorney’s practice as a whole. In this case, Plaintiff is a medical practice which supplied Plaintiff’s counsel herein with approximately 300 other PIP cases separate from Plaintiff’s counsel other cases.
As for the third Quanstrom criteria, this Court incorporates its evaluation regarding the Rowe factors stated above.
Conclusion
Based on the foregoing findings of fact and conclusions of law, it is ORDERED AND ADJUDGED that “Plaintiff’s Motion to Tax Attorneys’ Fees and Legal Assistant Fees and Costs” is GRANTED IN PART AND DENIED IN PART as follows. Plaintiff shall recover against Defendant the lodestar fee of $9,370.00, costs of $282.05, and an expert fee of $2,790.00, for a total judgment amount of $12,442.05, all of which shall bear interest at the rate of 7% for the current year and thereafter at the prevailing rate per year as provided for by Florida Statute, for all of which let execution issue instanter and forthwith.
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