11 Fla. L. Weekly Supp. 920a
Attorney’s fees — Insurance — Personal injury protection — Amount — Medical provider’s attorneys are entitled to compensation for 181.1 hours at $285 per hour and 36.9 hours at $325 per hour — Contingency risk multiplier — Where counsel were employed on pure contingency basis, relevant market required multiplier to obtain competent counsel, counsel was not able to mitigate risk of nonpayment in any way, at outset of case lack of countersignature was novel issue for which law was unsettled at trial level and insurer took hard-line position and displayed manifest recalcitrance throughout matter such that provider had at best 50% or less chance of success at outset, multiplier of 2.0 is applicable — No merit to argument that counsel is not entitled to multiplier because he was not aware of insurer’s hard-line countersignature defense on date he was retained and did not learn of it until insurer filed answer and affirmative defenses — Expert witness fees, costs, and prejudgment interest awarded
TOTAL HEALTH CARE OF FLORIDA, INC. (OSCAR BLAS), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 00-8661 CC 25(1). August 5, 2004. Wendell M. Graham, Judge. Counsel: Kevin W. Whitehead, Downs Brill Whitehead. Virginia Best. Thayer A. Musa.
ORDER AND FINAL JUDGMENT FORTRIAL ATTORNEY’S FEES AND COSTS
THIS CAUSE having come to be heard on 04/01/04, on Plaintiff’s, TOTAL HEALTH CARE OF FLORIDA, INC. (OSCAR BLAS), Motion to Determine Amount of Trial Attorney’s Fees and Costs, the Court 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:
It is therefore ORDERED AND ADJUDGED:
1. This Court finds that Downs & Associates, P.A., Kevin W. Whitehead, Esq., Lopez and Best, and Virginia Best, Esq., are entitled to recover a reasonable attorney’s fee from Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, pursuant to Florida Statute §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 Kevin W. Whitehead, reasonably expended 181.1 hours and that Virginia Best, Esq. reasonable expended 36.9 hours for the subject (PIP) lawsuit. This finding is based upon the Affidavit with attached time sheet filed by Kevin W. Whitehead, Esq., and Virginia Best, 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 $285.00 per hour for his time and that Virginia Best, Esq. is entitled to be compensated at the rate of $325.00 per hour for her time.
4. 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. and Virginia Best, Esq. along with all other factors outlined in Rowe and argued by the fee experts.
5. 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 the lodestar, the number of hours reasonably expended by Kevin W. Whitehead, Esq. (181.1) multiplied by the reasonable hourly rate of $285.00 per hour for Kevin W. Whitehead, Esq. is $51,613.50 and Virginia Best, Esq. (36.9) multiplied by the reasonable hourly rate of $325.00 per hour for Virginia Best, Esq., is $11,992.50 in this case.
6. This Court finds that pursuant to Plaintiff’s Contingency Fee Retainer agreement between Plaintiffs and their counsel, Kevin W. Whitehead, Esq. and Virginia Best, 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).
7. 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.
8. 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), Quanstrom and Rowe. Specifically, the fee agreement between Plaintiff 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.
9. This Court finds that at the outset of the case, the law regarding lack of countersignature was unsettled at the trial level and that this issue was a novel issue. The Defendant raised this defense in its Answer and Affirmative Defenses and filed a Motion for Summary Judgment in this case. The Court had granted this motion for summary judgment for the Defendant, which was appealed by the Plaintiff in this case, and subsequently this Court was reversed. This appeal was the first countersignature appellate decision in the 11th Judicial Circuit on this issue, and to this Court’s knowledge, the State of Florida. The Defendant filed a Writ. of Cert. Petition, Amended Writ. of Cert. Petition, and Motion for Recall, which was denied by the Third DCA, and the Third DCA instructed this Court to award prevailing party attorney’s fees to the Plaintiff accordingly. Subsequently, the Plaintiff prevailed at the trial level on its Motion for Summary Judgment which was initially vacated by this Court and then re-instated the Order nunc pro tunc with the Defendant’s expert witnesses’ own reductions. An Order and an Amended Final Judgment were entered by this Court on 2/27/04 in favor of the Plaintiff.
10. At the time that the Defendant filed its Answer and Affirmative Defenses in this case, the issue regarding the requirement for countersignature on the HCFA billing claim forms remained unsettled with no appellate opinions addressing the issue.
11. This Court finds that the Defendant took a hard-line position and “decided to go to the mat” with the Plaintiff to prove its point. See State Farm Fire & Cas. Co. v. Palma, 524 So. 2d 1035 (Fla. 4th DCA 1988).
12. Further, the Defendant displayed manifest, if not obstinate recalcitrance throughout this matter. See State Farm Mut. Auto Ins. Co. v. Moore, 597 So. 2d 805 (Fla. 2nd DCA 1992); Nentwick v. United Auto Ins. Co., 5 Fla. L. Weekly Supp. 778 (Fla. Palm Beach Cty Court, 1998).
13. In addition to Marc Goldman, Esq.’s expert witness testimony, this Court relies on the prior testimony of Roy Wasson, Esq. in this matter on the issue of a multiplier for the Writ. of Cert. Appellate Fees. Mr. Wasson testified that the Plaintiff in this case did in fact have a difficult time finding an attorney to represent it in this matter prior to retaining attorney Kevin W. Whitehead, Esq. in this matter. This Court takes judicial notice pursuant to Fla. Stat. § 92.202(6) of the records of this Court and also relies on the testimony of Plaintiff’s expert witness, Marc Goldman, Esq., and recognizes that despite a plethora of attorneys in Miami-Dade County, there is a very small and select group of lawyers that were willing to undertake PIP cases with this Defendant specifically because of the countersignature issue presented at the outset of the case in this matter, and in general with this Defendant because of its recalcitrance in litigation. These few competent attorneys in this area undertook these cases based upon a contingent fee only to be recovered by Court award and only if successful, and would not have undertaken the representation absent the potential for the application of a contingency risk factor multiplier if successful.
14. Finally, this Court rejects the argument made by UNITED AUTOMOBILE that assuming that Attorney Whitehead did not know that the countersignature defense was an issue on the day the Plaintiff retained him (due to the fact that the Defendant never notified the Plaintiff pre-suit to advise the Plaintiff of this position) and Attorney Whitehead became aware of this hard-line defense taken by the Defendant at the outset of the litigation when it filed its Answer and Affirmative Defenses, that Plaintiffs’ counsel is somehow precluded from the application of a multiplier, where, if counsel was on notice of the same defense pre-litigation, and then had the exact same case to litigate, Plaintiff’s counsel would be entitled to a multiplier. This would be an absurd result of legal application, and the law should never have absurd results. See Thomas v. Southwest Florida Water Management Dist., 864 So. 2d 455 (Fla. 5th DCA 2003).
15. This Court finds that the Plaintiff substantially prevailed on all claims and/or issues in this case at the trial level.
16. 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 or less. This Court determines that the “lodestar” fee amount in this case of $51,613.50 for Kevin W. Whitehead, Esq. and $11,992.50 for Virginia Best, Esq., is entitled to enhancement by a contingency risk factor multiplier of 2.0 based upon the factors enumerated above, the cited case law presented at the hearing and in the Motion for Attorney’s Fees and Costs, and argued at the hearing for a total fee award of $103,227.00 for Kevin W. Whitehead, Esq., and $23,985.00 for Virginia Best, Esq.
17. 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 6.5 hours and that a reasonable expert witness fee is $325.00 per hour. Consequently, Marc Goldman, Esq. is entitled to be compensated for his expert witness services rendered in this matter in the amount of $2,112.50, which is a taxable cost awarded to the Plaintiff.
18. This Court finds that Plaintiff’s counsel was entitled to an attorney’s fee award from it on 01/28/04, the date the Court sua sponte re-instated its prior Order and ended the trial. Consequently, pursuant to Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So.2d 929 (Fla. 1996), Plaintiff’s counsel is entitled to collect 7% interest per annum on the fee award of $127,212.00 from 1/28/04, through today for interest in the amount of $4,636.00.
19. This Court finds that Plaintiff’s counsel is entitled to taxable court costs in the amount of $1,696.09. In addition, the Plaintiff’s expert witness, Dr. Todd Sussman, is awarded 9 hours at $400.00 per hour as an expert witness fee for a total expert witness fee in the amount of $3,600.00.
20. A total judgement amount for attorney fees, taxable court costs, expert witness fees for trial and the fee hearing, and prejudgement interest on the award of attorney’s fees in the total amount of $139,256.59, is hereby entered in favor of Kevin W. Whitehead, Esq. of Downs & Associates, P.A., and Virginia Best, Esq. of Lopez & Best, against United Automobile Insurance Company, 3909 N.E. 163rd Street, North Miami Beach, FL 33160, for which let execution issue, and upon which post judgement interest at the rate of 7% shall accrue from this day until paid. The check shall be made payable to Downs & Associates, Trust Account.
21. 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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