11 Fla. L. Weekly Supp. 239e
Insurance — Personal injury protection — Attorney’s fees — Contingency risk multiplier of 2.0 is applicable where plaintiff’s attorney was employed on pure contingency basis, relevant market required potential of multiplier to obtain competent counsel, attorney was not able to mitigate the risk of nonpayment, at outset of case the law regarding insurer’s defense of lack of countersignature on HCFA claim forms was unsettled and plaintiff’s chance of success was 50% at best, and plaintiff substantially prevailed on all claims and issues — Expert witness fee, costs, and prejudgment interest awarded
JOSE M. NAVARRO, CICERO ORTHO-MED CENTER, and OMI of CORAL GABLES, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 01-2567 CC 25(1). December 15, 2003. Wendell M. Graham, Judge. Counsel: Kevin W. Whitehead. Gal Sinclair.
ORDER AND FINAL JUDGMENT FOR ATTORNEY’S FEES AND COSTS
THIS CAUSE having come to be heard December 10, 2003, upon Plaintiff’s, JOSE M. NAVARRO, CICERO ORTHO-MED CENTER, and OMI of CORAL GABLES, Motion to Determine Amount of Attorney’s Fees and Costs. Having heard argument of counsel, the evidence presented at the hearing, testimony from expert witnesses, and having been otherwise fully advised in the premises, the Court makes the following findings of fact and conclusions of law:
1. This Court finds that Downs & Associates, P.A. , and Kevin W. Whitehead, Esq. is entitled to recover a reasonable attorney’s fee from Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, pursuant to Florida Statutes §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 133.6 hours in the prosecution of this breach of contract (PIP) lawsuit. This finding is based upon the Affidavit with attached time sheet filed by Kevin W. Whitehead, 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 Kevin W. Whitehead, Esq. is entitled to be compensated at the rate of $275.00 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.
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 (133.6) multiplied by the reasonable hourly rate of $275.00 per hour, is $36,740.00 in this case.
5. This Court finds that pursuant to Plaintiff’s Contingency Fee Retainer agreement between Plaintiffs and their counsel, Kevin W. Whitehead, 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.” 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. This Court specifically finds that the Plaintiff in this case would have had a difficult time obtaining competent counsel if not for the potential application of a contingency risk factor multiplier.
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 Plaintiffs 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 of the case, the law regarding lack of countersignature was unsettled at the appellate level and that there were county court cases that held that countersignature was mandatory on the HCFA claim billing forms. The Defendant raised this defense in its Answer and Affirmative Defenses and filed two (2) separate motions for summary judgment in this case. The Court had granted a similar motion for summary judgment for the Defendant in another case, which was appealed and subsequently this Court was reversed. The motion for summary judgment in the case at bar was held during the pendency of that appeal and the Court had in fact ruled in favor of the Defendant on this issue and then, on Plaintiff’s motion for rehearing after the appellate case was decided by the 11th Circuit appellate panel, vacated its original ruling and entered an Order in favor of Plaintiff’s. The Defendant thoroughly litigated this issue in this case and went “toe to toe” with the Plaintiff during the pendency of this matter.
9. This Court finds that the Plaintiff substantially prevailed on all claims and/or issues in this case, based on the evidence presented at trial.
10. 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 $36,740.00 is entitled to enhancement by a contingency risk factor multiplier of 2.0 based upon the factors enumerated above and argued at the hearing for a total fee award of $73,480.00.
11. 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, Marc Goldman, 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 5 hours and that a reasonable expert witness fee is $300.00 per hour. Consequently, Marc Goldman, Esq. is entitled to be compensated for his expert witness services rendered in this matter in the amount of $1,500.00.
12. This Court finds that Plaintiff’s counsel was entitled to an attorney’s fee award from it on 11/6/03, the date of the verdict. Consequently, pursuant to Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So.2d 929 (Fla. 1996), Plaintiff’s counsel is entitled to collect 6% interest per annum on the fee award of $73,480.00 from 11/6/03, which was the date of the verdict, through today for interest in the amount of $410.69.
13. This Court finds that Plaintiff’s counsel is entitled to taxable costs in the amount of $1,884.40 plus $4,200.00 for Dr. Antonio Juan-Maza. After reviewing the Affidavit of Ana Cicero which has been filed with this Court in an effort to resolve this issue, and Dr. Juan-Maza’s tax information and documentation, this Court finds that Dr. Juan-Maza was an independent contractor in his capacity of testifying in trial and this Court awards him $4,200.00. The Court determines that all of these costs are taxable against Defendant in the amount of $6,084.40.
14. A total judgement amount of attorney fees, costs, prejudgement interests and expert fees in the amount of $81,475.09, is hereby entered in favor of Kevin W. Whitehead, Esq. against United Automobile Insurance Company, for which let execution issue and upon which post judgement interest at the rate of 6% shall accrue from this day.
15. This Court reserves jurisdiction to enforce this Final Judgment, as well as any previous Judgements and/or Orders in this matter, and to do any and all other acts necessary in this cause.
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