11 Fla. L. Weekly Supp. 241a
NOT FINAL VERSION OF OPINION
Subsequent Changes at 11 Fla. L. Weekly Supp. 343a
Insurance — Personal injury protection — Attorney’s fees — Appellate — Contingency risk multiplier — Where fee agreement between plaintiffs and counsel constituted pure contingency fee arrangement and amount of fee was not to be determined by amount of recovery, counsel was not able to mitigate risk of nonpayment of fee, plaintiff would have had a difficult time obtaining competent counsel if not for potential application of multiplier, plaintiff prevailed on all claims or issues litigated at appellate level, and because law regarding lack of countersignature was unsettled at appellate level plaintiff had at best 50% chance of success at outset of case, lodestar fee is enhanced by multiplier of 2 — Expert witness fee and costs 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). January 21, 2004. Wendell M. Graham, Judge. Counsel: Kevin W. Whitehead, Law Offices of Downs & Associates, Coral Gables. Virginia Best, Lopez and Best. Stuart Yanofsky. Roy Wasson.
ORDER AND FINAL JUDGMENT FOR WRIT. OF CERT. APPELLATE ATTORNEY’S FEES AND COSTS
THIS CAUSE having come to be heard on 01/08/03, on Plaintiff’s, JOSE M. NAVARRO, CICERO ORTHO-MED CENTER, and OMI of CORAL GABLES, Motion to Determine Amount of Writ. of Cert. Appellate 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, and the Third DCA’s Denial of Petitioner’s Writ. of Cert. and Amended Writ. of Cert., and Order awarding attorney’s fees.
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, Esq. and Virginia Best, Esq. reasonably expended 100 hours in the Writ. of Cert. Appeal 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. and Virginia Best, Esq., are entitled to be compensated at the rate of $325.00 per hour for their time. This is a blended rated. 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.
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 by Kevin W. Whitehead, Esq. and Virginia Best, Esq. (100) multiplied by the reasonable hourly rate of $325.00 per hour for Kevin W. Whitehead, Esq. and Virginia Best, Esq., is $32,500.00 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. 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).
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. 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 appeal in the 11th Judicial Circuit on this issue. 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.
9. This Court finds that the Plaintiff substantially prevailed on all claims and/or issues in this case at the Third DCA Writ. of Cert. appellate level.
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 or less. This Court determines that the “lodestar” fee amount in this case of $32,500.00 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 $65,000.00.
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, Roy Wasson, 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 16 hours and that a reasonable expert witness fee is $425.00 per hour. Consequently, Roy Wasson, Esq. is entitled to be compensated for his expert witness services rendered in this matter in the amount of $6,800.00, which is a taxable cost awarded to the Plaintiff. The Defendant has already paid $850.00 of this costs, therefore, it owes the Plaintiff $5,950.00 in taxable costs.
12. This Court finds that Plaintiff’s counsel was entitled to an attorney’s fee award from it on 3/31/03, the date of the Order Denying the Writ. of Cert. Petitions. 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 $65,000.00 from 3/31/03, which was the date of the Amended Order, through today for interest in the amount of $3,077.28.
13. This Court finds that Plaintiff’s counsel is entitled to taxable costs in the amount of $5,950.00, which represents the expert witness fee for this hearing.
14. A total judgement amount of attorney fees, taxable costs, prejudgement and interest in the amount of $74,027.28, 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, for which let execution issue, and upon which post judgement interest at the rate of 6% shall accrue from this day until paid.
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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