11 Fla. L. Weekly Supp. 938b
Insurance — Personal injury protection — Attorney’s fees — Small claims — Hours reasonably expended — Reasonable amount of time to expend on small claims PIP action not involving novel or complex issues was 56 hours, not 123.6 hours requested by medical provider’s counsel — Requested hourly rate of $300 is rejected; reasonable rate is $175 per hour — Contingency risk multiplier — Where risk of nonpayment was non-existent and success was certain from start of case, and insurer engaged in dilatory maneuvers, multiplier of 1.25 is appropriate — Expert witness fee awarded
TREASURE COAST INJURY AND WELLNESS CENTRE, P.L., Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 19th Judicial Circuit in and for Indian River County. Case No. 2003-2087 SP 07. July 2, 2004. Joe Wild, Judge. Counsel: Clifford Miller. Joseph Peduzzi.
JUDGMENT FOR ATTORNEY’S FEES
The subject of this motion for attorney’s fees is a small claims case which, when filed, involved an amount in controversy of $2,852. The case was opened and settled, for $800,1 within four months. The plaintiff’s attorney now requests attorney fees of between $40,788 and $55,620, depending on the application of a multiplier. This case is a standard PIP case. The doctor charged a fee, the insurance company reduced some amounts requested and completely denied other amounts requested, the patient assigned the claim to the doctor, and the doctor sought to get the reduced and denied charges paid.
The insurance company would not voluntarily negotiate, so a lawsuit was necessary. Small claims court is specifically set up to deal with these kinds of minor cases. Trials can always be set within 60 days of the pretrial conference in this county, as was the case in this dispute. A jury trial was demanded by both sides, with one continuance being granted. The presence of lawyers on both sides, as can be expected, did make the case more complicated than necessary. The defense attorneys filed defensive motions (not required or necessary under small claims rules), made defensive allegations in their pleadings which couldn’t be backed up by any facts, and generally delayed the resolution of the case. Some of the delay, though, was not their fault. The plaintiff could not quite get the assignment story down pat (written, oral, both??). That evolving story resulted in the continuance of the first trial date. Nothing, however, about the case was complicated, overly technical, novel or in any other way indicated a need for any special expertise by legal counsel.
On the face of it, asking for this much in fees for this kind of case, with the result obtained, is hard for this Court to accept as reasonable. On the other hand, the insurance side acted unreasonably during the defense of the case which resulted in more lawyer time expended by the plaintiff than necessary. The progression and resolution of this case, in a small way, points out the need for some kind of tort reform. This Court would settle for just a little reform, such as a rule banning attorneys from small claims court. How simple it would have been for the doctor to file his claim (with the help of the clerk); for the insurance company claims representative to show up for the pretrial, with the two parties sitting down to mediate. They would settle, or it would be set for trial within several weeks. If a trial was necessary, the doctor and insurance company would lay out their cases and a judgment would be entered. Possibly the doctor and the insurance company would bring doctors with them, possibly not. In any event, the case would not be difficult to bring to a conclusion.
However, everyone has a right to be represented by an attorney. Plaintiffs may not want to be bothered with dealing with the insurance companies. But how can a simple case that a non-lawyer doctor could easily prosecute himself turn into a $55,000.00 effort? What do we make of the fact that the plaintiff presented expert testimony from another lawyer that the fees requested are entirely reasonable? The testimony was to the effect that $300 per hour would be customary for this kind of case in this county, and 123.6 hours was a reasonable amount of time to spend on this specific case. The expert testified that he spent 3 or 4 hours looking at the case file and billing records, and everything looked fine and supported his opinion on the fees to be awarded.
First, the undersigned has lived in this county for approximately 35 years. The undersigned has conducted numerous fee hearings, has hired attorneys personally, and has had numerous discussions with attorneys in this county who handle all kinds of civil and criminal cases. Three hundred dollars per hour is not the customary and reasonable fee for a simple PIP case in small claims court in this county. There is no doubt you can find someone who will charge you $300 per hour for such a case, but you can also pay $8 for a burger at the Ocean Grill. You can do just as well for $2 for a burger at Quik Snak.2
Second, the hours that have been alleged as necessary and reasonable include entries, for instance, for calling the Court’s judicial assistant to set up hearing times.3 Basically . . .ring, ring. . .” Hello, county judge’s office, Carlene speaking”. . .” This is Cliff Miller calling on the case of Treasure Coast Wellness versus Progressive. I need to set a hearing on a motion to strike, can we set it for the same time as the other motions that are already set?”. . .” That would be fine, that will be on January 22nd at 2:30.”. . .” Thank you.”
If you assume that a phone call to set a hearing should be compensated as legal fees (which the undersigned does not), you certainly cannot conceive of the call taking more than 2 or 3 minutes. The fee records of the plaintiff’s attorney indicate a time of 12 minutes for the call, for a requested charge of $60. That isn’t the only questionable entry. There are entries for “reviewed notice of deposition” or “reviewed notice of hearing.” Those would be more likely accepted as time to be billed at the attorney rate. As we all know, the notices are one page documents that contain a date and time of the hearing or deposition listed. The time sheet of the plaintiff’s attorney indicates that it took 12 minutes to read each notice. By taking the last four entries for 1/13/2004 and the first entry for 1/14/2004,4 we see five entries, in total, to review either a notice of deposition or a notice of hearing. The total time requested is one hour for looking at five pieces of paper, each containing a date and time only.
Another example: this Court sent out a trial order with the date of trial and procedural instructions. The fee records indicate 12 minutes to review the order. That is reasonable, because there are procedural instructions which the attorney will need to adhere to in order to be ready for trial. The order that was sent, however, had a typographical error in the trial date because it had the year 2003 instead of 2004. So an amended order was mailed to reflect the current year. Of course, 12 minutes was needed to review that change.5
Finally,6 there is the first entry in the records. One hour is indicated as needed to draft a 15 day demand letter to the insurance company. The letter is attached to the plaintiff’s complaint as Exhibit #3. It is a one page letter containing 9 lines in the body. The letter contains minimal information to put the insurance company on notice of a possible suit. The Court wrote it out itself, long-hand. It took 7 and ½ minutes to write the letter. One can double the time to 15 minutes to allow for the time it takes to creatively conceive of the words to use, but it is difficult to see how it would take much longer than that to come up with that type of letter.
The Court, then, in reviewing the documents and testimony, made note of the time requested that was not reasonable and necessary, in addition to the time requested for tasks that cannot be considered as compensable for attorney time. There was also time to be deleted for those entries that are not compensable because they were for the purpose of litigating the amount of the fees. After careful review of all the pertinent information and factors, the Court finds that a reasonable amount of time to spend on this case would be no more than 56 hours. As indicated earlier in this order, the Court rejects the request for an attorney’s fee rate of $300 per hour. The reasonable hourly rate is $175.00.7 The total comes to $9,800.00.
The next issue involves the use of the multiplier.8 The public policy justification for a multiplier is found in several different scenarios. The only one applicable here is to reward a party who is enforcing public policy, i.e., making an insurance company pay a small claim that would otherwise be economically impracticable to pursue if the plaintiff had to bear his own expenses. The multiplier works as a bonus for the plaintiff’s attorney and a punishment for the defendant. Obviously, the defendant’s foot dragging in this case has upped the fee it will be paying.9 The application of the multiplier then makes that foot dragging even more expensive. While the defendant apparently had some legitimate issues since the claim was settled for a lower amount than originally claimed, there is no doubt that the defendant spent a good portion of the case making dilatory maneuvers.
The plaintiff’s attorney testified that the case was a winner, in his opinion, from the start. There were no novel issues, or any other complex problems to surmount. The risk of non-payment was non-existent. A multiplier of 1.25 would be appropriate.
Finally, we have the issue of the reimbursement for the services of the lawyer who was hired as an expert. The plaintiff is entitled to be reimbursed for those services. The expert is due $250.00 per hour, and 4 hours would be a reasonable amount of time to look through the file and attend the court hearing. The total for the lawyer expert is $1,000.00.
The total judgment, which incorporates the multiplier, is in favor of the plaintiff in the amount of $13,250.00. Execution may issue immediately.
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1See Stipulation of Settlement, filed March 15, 2004.
2See the framed letter from the plaintiff’s expert on the wall at Quik Snak, which points out the sufficiency of the burger at Quik Snak in relation to all other burger providers.
3See entry for 1/16/2004 of the billing records of Mr. Miller. Plaintiff’s Exhibit #1.
4Plaintiff’s Exhibit #1.
5See entry for 11/24/2003 of the billing records of Mr. Miller. Plaintiff’s Exhibit #1.
6“Finally” for purposes of this order, but not meant to imply that there are no other entries that fail to support the time requested.
7Both the hourly rate and the hours expended are consistent with the testimony of the defendant’s expert, whom this Court found to be credible.
8Standard Guaranty Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990).
9The Court just recently entered an order for a similar PIP suit (7 months between the opening of case and settlement) with the same defendant where the attorney’s fees were found to be a little under $3,000.00. LaBella v. Progressive, No. 2003-0778 SP 07 (County Court, Indian River County, Fla.).
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