11 Fla. L. Weekly Supp. 457c
Attorney’s fees — Insurance — Personal injury protection — Amount — Provider’s attorney is entitled to compensation for time spent after insurer offered to pay outstanding benefits but before it tendered payment — Costs are awarded for taking deposition of claims adjuster, which was critical to case — Provider’s attorney is awarded attorney’s fees for 24 hours at hourly rate of $225 — Contingency risk multiplier — Where relevant market requires multiplier to obtain competent counsel, provider has pure contingency risk contract with attorney, and likelihood of success was even at outset, multiplier of 1.5 is applied — Expert witness fee, costs, and prejudgment interest awarded
FRANCISCO M. GOMEZ, M.D., P.A., (As assignee of Mohamed Koraitim), Plaintiff, vs. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Small Claims Division. Case No. 02-16204 SC. Division H. March 18, 2004. Paul L. Huey, Judge. Counsel: Timothy A. Patrick, Timothy A. Patrick, P.A., Tampa. Susan Kent.
FINAL JUDGMENT ON ATTORNEY’S FEES AND COSTS
THIS CAUSE having come before the Court on February 9, 2004, on Plaintiff’s Motion to Tax Attorney’s Fees and Costs. Present before the court were Plaintiff’s counsel, Timothy A. Patrick, with his expert witness, Roberto Alayon, Esquire and Nationwide’s counsel, Susan Kent and former Nationwide counsel, Bora Kayan, Esquire. The court, after hearing argument of counsel and considering the evidence and testimony presented and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED:
Defendant previously admitted Plaintiff’s entitlement to attorney’s fees and costs when it offered to pay the outstanding benefits.
At issue in the motion were the number of hours Plaintiff’s counsel was entitled to be compensated in this matter and the hourly rate requested by counsel. Also contested was whether Plaintiff’s request for a contingency risk multiplier is currently appropriate under Florida law and if so, whether a multiplier was to apply in this case.
Defendant argues that Plaintiff’s counsel is not entitled to compensated for any time subsequent to the Defendant’s offer to settle the underlying benefits and interest in this matter. In response to Defendant’s request for a settlement offer in this matter, Plaintiff submitted an offer to accept the outstanding benefits owed, while waiving statutory interest, contingent upon the payment of a specific amount of attorney’s fees and costs. Defendant responded by agreeing to pay the outstanding benefits, but not agreeing to pay Plaintiff’s requested attorney’s fees and costs. Defendant contended that such an offer was improper, unethical and not in the Plaintiff/medical provider’s best interest. The case then proceeded in litigation until such time as the Defendant ultimately tendered full payment of the outstanding benefits, along with the statutory interest owed. Plaintiff accepted these tendered drafts as full and final settlement whereupon the case then proceeded to this attorney fee proceeding.
This court does not agree with the defense position that Plaintiff’s counsel is not entitled to be compensated for the time spent after the defense offered to pay the outstanding benefits, but before it tendered payment. Moreover, the issue of combining or making an offer to settle the outstanding benefits, contingent upon the payment of attorney’s fees and costs is a very complicated issue; probably one that everybody might like an ethics opinion on. PIP is a rare arena where the insurance company always knows it can settle a case by paying the outstanding bill(s) and some interest. It’s not a case where damages are unliquidated. It is always in the insurance company’s control to just send out a check. The case is not settled until you send a check. Thus, the court does not find that any of the time spent during settlement negotiations as non-compensable to Plaintiff’s counsel.
This court follows the Statewide Uniform Guidelines for Taxation of Costs for Civil Actions. The Defendant disputed whether the transcript of the deposition of Defendant’s claim adjuster should be taxable. Subsection E of the rule states:
“The cost of such depositions should not be taxed unless the prevailing party could logically demonstrate the taxing of such deposition was reasonably necessary under the facts and circumstances”.
This court finds that the taking of the deposition of the claim adjuster was obviously critical to this case and that Plaintiff’s counsel has logically shown why it should be taxed. Said cost of $405.45 shall be taxed.
1. Pursuant to F.S. 627.736(8) and F.S. 627.428, Plaintiff’s Motion to Tax Attorney’s Fees and Costs is hereby GRANTED.
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. Regarding the hourly rate(s) and the number of hours, the court finds that Plaintiff’s counsel, Timothy A. Patrick, reasonably devoted 24 hours in this case and should be compensated at the rate of $225.00 per hour based upon the facts of this case.
4. Regarding the application of a contingency risk multiplier, the court finds it understands the fee shifting arguments and that the law is in a bit of a flux. However, until the Florida Supreme Court rules otherwise, this court is not going to change the law. According to Bell, after the court determines that a multiplier should apply, the sole criterion for calculating the multiplier range is the likelihood of success from the onset of the case. If success is determined as more likely than not, then the multiplier range is 1.0 to 1.5; if the chances of success are even, then the multiplier range is 1.5 to 2.0; if the chances of success are unlikely, then the multiplier range is 2.0 to 2.5. This court finds that the Plaintiff’s likelihood of success was even or 50/50 at the onset of this case and pursuant to Quanstrom, Rowe and Bell, applies a contingency risk multiplier of 1.5, which is in the low end of the appropriate range of 1.5 to 2.0. The court’s application of the contingency risk multiplier is based upon the following specific findings:
5. The relevant market requires a contingency risk multiplier in order to obtain competent counsel. Local PIP attorneys such as Brad Souders, Mark Tischhauser and Tim Patrick are being awarding multipliers by local courts. Contingency risk multipliers are part of the expectation of practicing PIP law for Plaintiff’s lawyers at this point.
6. The court is well aware of the type of litigation and tension that exists in PIP. The insurance companies hire very, very good defense counsel and they are going to fight hard. They are going to make their decision. They are going to support their people.
7. The Defendant sent out two (2), maybe three (3) different explanations of benefits (EOB’s) wherein one seems to duplicate another. One EOB has a review date of 12/27, while another has a review date of 1/22, wherein the insurance company agreed to pay (2) different amounts.
8. Usual, customary and reasonable (UCR) cases are not always easy cases as the coding system can be difficult for the Plaintiff. It is easy to argue that it’s run of the mill. The coding books demonstrate that there can be duplicity of the some of the procedures that are subsumed within multiple codes, which can make it difficult.
9. Plaintiff’s counsel testified that he had a pure contingency fee contract with his client.
10. Plaintiff’s counsel and its expert testified that the likelihood of success was approximately even or 50/50 at the onset of the case when the case was first accepted. There was no testimony presented by Defendant to the contrary.
11. The court finds that the likelihood of success was even or 50/50 at the onset of this case. Thus, the court does not have authority to go apply less than a contingency risk multiplier 1.5.
Multiplying 24 hours times the hourly rate of $225 multiplied by the contingency risk multiplier of 1.5 results in a reasonable fee of $8,100.00.
The court finds reasonable costs of $549.95 to be taxable.
Pre-Judgment Interest on the fee award is acknowledged at the rate of 7% from the date of June 6, 2003 forward.
Plaintiff’s expert witness, Robert Alayon is awarded expert witness fees for 3.5 hours at the rate of $225.00 per hour for a total of $787.50.
ACCORDINGLY, FINAL JUDGMENT is hereby entered against the Defendant, NATIONWIDE MUTUAL FIRE INSURANCE COMPANY,
attorney’s fees in the sum of $8,100.00;
plus costs of $ 549.95;
plus interest of $ 309.95;
plus expert witness fees of $ 787.50;
for a total sum of $9,747.40
for which let execution issue, which sum shall draw interest at the rate of seven (7)% per annum in accordance with Florida statutes.
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