11 Fla. L. Weekly Supp. 561a
Attorney’s fees — Insurance — Personal injury protection — Amount — Hourly rates of $325, $300, and $275 are reasonable — Hours expended — Time requested is reduced based on unnecessary duplication of effort — Contingency risk multiplier — Where counsel was engaged under contingent fee arrangement, relevant market requires multiplier, counsel was unable to minimize risk of nonpayment, issues were novel and complex, results obtained included full recovery of benefits plus interest, multiplier benefitted provider by enticing counsel to take case, and chances of success at outset were less than even, 2.0 multiplier is awarded — Expert witness fee, costs, and prejudgment interest awarded
PINNACLE MEDICAL INC. d/b/a Iso Data Diagnostics, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. Circuit Court, 15th Judicial Circuit in and for Palm Beach County. Case No. CL 00 5974 AB. April 12, 2004. Peter D. Blanc, Judge. Counsel: Harley Kane, Kane & Kane, Boca Raton. Nicholas Ryan, West Palm Beach. Final Judgment for Fees and Costs
On March 30, 2004 the Court heard the Plaintiff’s Motion to Tax Fees and Costs based upon the judgment on entitlement previously rendered by Judge Labarga on October 30, 2003. The Court heard testimony, on behalf of the plaintiff, from Harley N. Kane, Esq., Charles J. Kane, Esq., Brian K. Korte, Esq., and plaintiff’s expert Steven Ainbinder, Esq. On behalf of the defendant, the Court heard the testimony of Dan Methe, the defense expert.
This case involved novel and complex issues. The Court notes that this matter was begun in January, 1996 and is only now reaching final conclusion. The plaintiff’s witnesses testified that, at the time this matter was undertaken, the market in Palm Beach County required a contingent fee multiplier to attract competent counsel, that the matter was undertaken on a pure contingency fee basis, that the plaintiff obtained every penny the plaintiff alleged was due and owing, and that there was no way to mitigate the risk of loss in any manner.
Plaintiff’s expert, Mr. Ainbinder, is an attorney who has tried to verdict approximately 40 PIP trials. He currently does both plaintiff’s and defense PIP work (including representation of several insurers). He testified that the relevant market at the time this case was taken was very limited due to the problems that arbitration presented and that the relevant market required a multiplier to entice competent counsel. He opined the risk of success at the outset was less than even justifying a multiplier of 2.0 to 2.5 and that in view of the level of risk this case presented, 2.5 was appropriate. He opined that the hours Plaintiff’s counsel claimed were reasonable and their hourly rates were reasonable. He testified that there was no way the Plaintiff’s counsel could mitigate their risk of loss as the engagement was purely contingent and the Plaintiff was unable to pay hourly rates. He testified he has 16 hours of work devoted to this matter including time spent as a witness at the fee entitlement hearing and in preparation and testimony at the March 30, 2004 hearing. He testified that he has been awarded $300 per hour on several occasions, which is his rate for expert testimony, that he expected to be paid for his work in this case and that the engagement was burdensome.
The Defendant presented one witness, its fee expert, Dan Methe, an attorney with 19 years experience doing almost exclusively defense work and no PIP work in the past 10 years. He opined that this was a run of the mill PIP case and that it was of a type he would assign to an associate. He expressed his opinion as to the various rates for each of Plaintiff’s counsel but supplied no empirical basis for his determination of reasonable rates.
It was his opinion that a multiplier was not applicable in this case. He opined that was unnecessary for the Plaintiff to have two attorneys at the final hearing on fee entitlement despite the undisputed fact that the pre-trial stipulation identified two attorneys who would represent the Defendant at that hearing. It was his opinion that only charges for one of the Plaintiff’s two attorneys who worked on those preparations and who attended that hearing was allowable. He also opined that too much time was spent on those preparations.
The Court has considered all the factors set forth in Standard Guaranty Insurance 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 Co., Inc., 734 So.2d 403 (Fla. May 20, 1999). On the evidence, this Court finds that the following attorneys rendered services as counsel for the Plaintiff rendering the reasonable number of hours at the reasonable hourly rates indicated as to each of them respectively:
Attorney Reasonable Hourly Rate Reasonable Hours Charles J. Kane $325.00 23.6 Harley N. Kane $300.00 58.6 Brian K. Korte $275.00 38 Total hours 121.2
The Court has found that the hourly rates charged by the three attorneys listed above is reasonable in light of their experience and in light of the fact that they specialize in this type of litigation. The Court has reduced the amount of time requested by attorney Harley Kane based upon an unnecessary duplication of effort around the time of the final hearing. The Court has not completely eliminated Mr. Kane’s time in conjunction with the final hearing because it was reasonable for Mr. Korte to consult with Mr. Kane during his preparation. However, Mr. Korte was lead counsel and was well able to prepare for and conduct this hearing with only limited assistance from Mr. Kane.
Plaintiff’s counsel were engaged under a contingency fee agreement. The relevant market requires a multiplier for this type case and the Plaintiff’s counsel were unable to minimize their risk of loss. The issues were novel and complex, the results recovered not only the full remaining benefits to the policy limits but also included recovery of interest on the delayed recovery of underpaid amounts in addition to interest on the final remaining benefits recovered. The Court finds that the multiplier benefitted the Plaintiff as it enticed the Plaintiff’s counsel to take this case. After considering the evidence presented and the applicable law, this Court finds that the Plaintiff’s chances of success at the outset of this case were less than 50/50 and awards a multiplier of 2.0.
The testimony of Plaintiff’s expert, Steven Ainbinder, Esq. was necessary. A reasonable hourly rate for Mr. Ainbinder is $300.00. Mr. Ainbinder reasonably expended 12 hours in this case. Accordingly, a reasonable fee for his services is $3,600.00.
The Plaintiff is entitled to an award of other costs in the amount of $3,090.54 (taxable costs reflected on Plaintiff’s Exhibit 3 beginning on June 14, 2000).
Based on the foregoing, the Plaintiff is entitled to a total award of attorneys’ fees after applying a multiplier of 2.0 in the total sum of $71,400.00, costs in the amount of $3,090.54, expert witness fee in the amount of $3,600.00, making a total sum of $78,090.54, that shall bear interest until paid at seven (7%) per annum, for which let execution issue. Plaintiff is also entitled to prejudgment interest from October 30, 2003, and may submit an Amended Final Judgment containing the agreed upon amount.
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