11 Fla. L. Weekly Supp. 855a
Attorney’s fees — Insurance — Personal injury protection — Reasonable hourly rate — Where testimony never made it clear which work was performed by provider’s attorney and which by attorney’s less experienced associate, provider’s attorney and expert witness testified that $300 was reasonable hourly rate for both attorney and associate, and insurer did not present any evidence of reasonable hourly rate, court must find that $300 is reasonable hourly rate for all hours expended — Contingency risk multiplier — There was little risk in accepting case on assigned claim with issues of exhaustion of benefits and correctness of coding as provider would know what other treatment had been provided and billed and could show attorney why codes billed are correct — Attorney’s concerns regarding possible counterclaim for fraud and provider dismissing suit and leaving attorney without compensation are matters that could have been taken care of in fee arrangement and should not be included in determination of multiplier — Despite parties’ stipulation that multiplier is appropriate, fact that PIP benefits assignment cases are kind of work that lawyers want to do causes multiplier to gravitate downward and could cause one to conclude that use of multiplier is no longer necessary in such cases — Based on stipulation that multiplier is appropriate, multiplier of 1.5 is applied — Costs and expert witness fee awarded
PETER J. GODLESKI, M.D., P.A. d/b/a CENTRAL FLORIDA ORTHOPEDIC & NEUROLOGY SPECIALISTS as assignee of STEFANY GROOVER, Plaintiff, vs. NATIONWIDE GENERAL INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 03-SC-3893-19-R. July 8, 2004. Ralph E. Ericksson, Judge. Counsel: Brian A. Coury, The Coury Law Firm, Lake Mary, for Plaintiff. Hanton H. Walters, Law Offices of Capito and Polk, Longwood, for Defendant.
ORDER ON PLAINTIFF’S MOTION FOR ATTORNEY’S FEES
THIS CAUSE came on to be heard on April 2, 2004 upon the Plaintiff’s Motion to Tax Fees and Costs. The Court took testimony and heard argument of counsel.
Based upon the announced stipulation of the parties at the hearing, the Court finds that 18.4 hours was a reasonable amount of lawyer time expended on this case and a multiplier is to be applied.
The difficulty in this case is first in determining the reasonable hourly rate to be applied to the attorney’s fee in this case, and secondly to determine the proper multiplier.
The Reasonable Hourly Rate: The Plaintiff’s attorney (Brian Coury) testified that a reasonable hourly rate for a person with his knowledge and skill was $300.00 per hour. On cross-examination Mr. Coury admitted that he had not done all of the work, but that because he is the supervising attorney in the law firm and responsible for the file, his rate should apply. When pressed he said that their firm’s records do not separate which attorney in the firm did what work, but upon further inspection he determined that his associate, Chris Conomos, had done 11.5 hours of the work. He further testified that he was of the opinion that with Chris Conomos’ six years of legal experience a reasonable rate for Mr. Conomos would also be $300.00 per hour.
In Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985) it was stated that “Florida Courts have emphasized the importance of keeping accurate and current records of work done and time spent on a case, particularly when someone other than the client may pay the fee . . . . To accurately assess the labor involved, the attorney fee applicant should present records detailing the amount of work performed.”
In the present case the testimony never made it clear which attorney did which work. The Plaintiff’s attorney argued that both attorneys’ work was worth the same hourly rate, even though it was brought out that the supervising attorney had almost twice the legal experience in this field.
To support the Plaintiff’s claim as to an appropriate hourly rate, the testimony of Rutledge Bradford was presented. Ms. Bradford is a board certified civil trial attorney and was of the opinion that the reasonable value of the legal services of Brian Coury and Chris Conomos was each $300.00 per hour.
The Defendant did not put on any evidence of the reasonable value of the legal services rendered in this case. Therefore upon the testimony presented, this Court must find that the reasonable value of the legal services provided by the Plaintiff’s firm was $300.00 per hour for the 18.4 hours that were reasonably expended in this case.
The Appropriate Multiplier: Since the attorneys stipulated at the outset of the hearing that a multiplier was appropriate, this Court will next apply the facts in this case to the criteria set forth in Florida Patient’s Compensation Fund v. Rowe, supra.
The first analysis has to do with the novelty of the issue presented and the level of skill needed to address it. In this case Mr. Coury testified that when he received the case he was presented with four problem areas:
a) Were benefits already exhausted.
b) Was the explanation of benefits reported correctly, i.e. a coding problem.
c) Could there be a counterclaim for fraud.
d) The Plaintiff just wanted to collect the bill and did not want to be tied up in depositions or have to spend any time participating in the lawsuit.
For a proper analysis it would be helpful to understand that this case is what is called a “P.I.P. Benefits Assignment Case,” i.e. a patient (insured) receives medical treatment from a medical care provider, and then the insured assigns their insurance benefits to the medical provider, who then brings a lawsuit against the insurance company to collect payment for the medical treatment. Usually the medical care provider is a corporation, but in essence it is “a doctor’s office,” with the doctor being the one who runs the corporation and provides the corporation’s medical service treatment. Hence, these lawsuits are bill collection cases with two essential questions: 1) was the treatment reasonable and necessary, and 2) was the charge reasonable. If the patient (insured) were to seek the services of a lawyer to collect their benefits under a P.I.P. insurance policy it would be reasonable to assume that the patient would have very little idea as to whether the medical treatment they received was reasonable and necessary, or if the charge was appropriate. If the lawyer were to take the case, there could be a high degree of unknown risk about the facts and this would suggest an upward movement in the multiplier. However if the medical care provider takes an assignment of benefits and brings the case to the lawyer, virtually all of the unknowns can be answered at presentment, i.e. the doctor is an expert and can explain to the lawyer why the treatment was necessary and reasonable, whether the proper billing code was used, whether a proper explanation was given to any questions that the insurance company may have had about the billing codes or treatment, and whether the fee charged was reasonable. Therefore, the lawyer’s ability to make an assessment would be very good because there would be very few (if any) unknowns and this would cause downward movement in the multiplier. Applying this explanation to the facts of this case would show that there was very little risk on the question of exhaustion of benefits. The doctor would know if there was any other treatment provided and how much the doctor had billed.
On the question of billing codes the doctor can show to the lawyer the codes used, can explain why they are the correct codes, and can show the explanation provided by the doctor to the insurance company to explain any questions that the insurance company may have had. Essentially the lawyer will be able to zero in on the precise issue that the case presents and will know what the medical testimony will be. In the case before this Court the evidence presented showed that this case involved a question of whether the correct billing code was used and the insurance company’s request for proper documentation about the code. Nowhere in the evidence presented does it show how this issue was resolved, who caused the problem, or whether the doctor’s office could have resolved the dispute early on by simply discussing the billing code and explanations with the claims adjuster.
As to the concern that Mr. Coury had that there could be a counterclaim for fraud, this would be something a lawyer could take care of by the fee arrangement they set with the client and probably should not be included in any Rowe analysis. The expert testimony provided in this case was that the doctor (Plaintiff) in this case was a very difficult and demanding client and Ms. Bradford was aware of other lawyers who had represented the doctor on prior, similar cases and those lawyers would “prefer” not to represent the doctor again. This testimony supports Mr. Coury’s testimony that the doctor did not want to have any participation in the lawsuit (i.e., did not want to be deposed). Mr. Coury had no assurance that at any time the doctor would not simply “bail out of,” or dismiss the lawsuit and leave the lawyer with no compensation for the work done. This again is something that the lawyer should work out with the client in their representation agreement and should not be something that a Court should use to move the multiplier.
When we return to the Rowe criteria, we find from the testimony of Mr. Coury and Ms. Bradford that it is their opinion that a 2.0 multiplier would be appropriate for the difficulty of the case and the skill required. However, almost no testimony was presented to show what work was actually done, or the difficulty that was involved to support the proposed multiplier. The Defendant presented no testimony whatsoever about an appropriate multiplier. Defense counsel merely argued that he thought a 1.25 multiplier was appropriate.
The Rowe criteria also talks about the skill needed to do the work and whether the acceptance of employment in this case would preclude other employment. Just as was explained earlier that this kind of case was essentially a P.I.P. Benefits Assignment Case, we should remember that in Standard Guaranty v. Quanstrom, 555 So. 2d 828 (Fla. 1990) one of the policy considerations behind having a multiplier was so that everyone could have adequate representation and that one party’s inferior financial position to the other would not cause it to be unable to have any (or less than adequate) legal representation when compared to the other party. A multiplier would be appropriate in the situation where the patient/insured is up against their insurance company to pay for medical services pursuant to an insurance contract and the patient has to beg for a lawyer to take their case, when the lawyer hardly ever does this kind of case. However, over time a P.I.P. Benefits Assignment Case has evolved into a situation where the parties are now on equal footing. The patient has assigned their benefits to the medical facility, a corporation. This corporation does not have trouble finding a lawyer. In today’s world a person can no longer turn on the television or radio, look at the back of a phone book (much less the tabs in it, or the yellow pages) or drive down the road without seeing the advertisements on billboards and at bus stops, without seeing an abundance of lawyers advertising that they are ready, willing and able to take these kinds of cases. Thus, there is no shortage of lawyers willing (wanting) to take these cases. P.I.P. Benefits Assignment Cases are the kind of work that the lawyers want to do, and it is not a field that a lawyer would have to do extensive background work in to get “up to speed” in the field. The lawyers that advertise in the field are holding themselves out as specialists in these kinds of cases by sheer volume and repetition. This would cause the multiplier to gravitate downward. (It is not unusual to see one law firm representing a medical facility in case, after case, after case.) Rowe also says to look at the circumstances of the case and the relationship with the client. The specific circumstances of this case have been talked about earlier in this order and will not be repeated. Suffice it to say the demands of the client in this case and the relationship between the lawyer and Plaintiff, cause one to wonder if a lawyer should engage in representation of this kind of client.
Although the lawyers stipulated at the beginning of the hearing that a multiplier is appropriate in this case, a logical analysis of the evolution of P.I.P. Benefits Assignment Cases could very easily cause one to conclude that the use of a multiplier may have passed its usefulness (it is obviously no longer needed across the board). The multiplier should probably be revised to apply to only those situations where it was originally intended (the patient who is on unequal economic terms with their insurance company and has to look high and low to find that rare lawyer willing to take these kind of cases).
As the lawyers in this case stipulated to a multiplier at the outset of this hearing we will never know if this Plaintiff had any difficulty finding a lawyer to represent them, or if they have an arrangement whereby the medical facility regularly sends these kinds of cases to the law firm. The Court finds a 1.5 multiplier to be appropriate in this case.
As the lawyers in this case stipulated that 18.4 hours was reasonable and the only evidence presented was that $300.00 per hour was reasonable, this Court will find that to be the hourly rate for pre-settlement work.
The only evidence presented as to post-settlement work was 6.3 hours and the only evidence presented as to a reasonable hourly rate was $300.00 per hour.
The Plaintiff’s expert at the attorney’s fee hearing testified that she spent 5.5 hours in trial preparation and testimony and that $350.00 per hour was a reasonable hourly rate for a person with her experience and qualifications. The insurance company presented no evidence on this point, so the Court must accept it.
As to costs, the insurance company concedes the costs and so the Plaintiff will recover $99.50.
It is hereby,
ORDERED AND ADJUDGED that Plaintiff, Peter J. Godleski, M.D., P.A. d/b/a Central Florida Orthopedic & Neurology Specialists as assignee of Stefany Groover, shall recover $10,269.50 from Defendant, Nationwide General Insurance Company. Rutledge Bradford shall recover $1,925.00 from Defendant, Nationwide General Insurance Company. The total sum shall bear interest at the rate of 7% per year, all for which let execution issue.
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