12 Fla. L. Weekly Supp. 1076a
Attorney’s fees — Insurance — Personal injury protection — Amount — Contingency risk multiplier — Where fee agreement between medical provider and counsel constituted pure contingency fee arrangement, but relevant market did not require multiplier to obtain competent counsel, multiplier is not applicable — Expert witness fee, costs and prejudgment interest awarded
ASCLEPIUS MEDICAL, INC., a/a/o Barbaro Hernandez, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 02-7664 SP 25(2). August 24, 2005. Lawrence D. King, Judge. Counsel: Richard Patino, Richard Patino, P.A., North Miami; and Kevin W. Whitehead, Downs, Brill Whitehead, Coral Gables, for Plaintiff. Camille Miller.
ORDER AND FINAL JUDGMENT FOR ATTORNEY’S FEES AND COSTS
THIS CAUSE having come to be heard on August 24th, 2005, after due notice to the parties, on Plaintiff’s, ASCLEPIUS MEDICAL, INC., a/a/o Barbaro Hernandez’, Motion to Determine Amount of 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 ASCLEPIUS MEDICAL, INC., a/a/o Barbaro Hernandez, and their attorneys, Downs Brill Whitehead (formerly known as Downs & Associates, P.A.), and Richard Patino, Esq., are entitled to recover a reasonable attorney’s fees from Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, pursuant to Florida Statutes §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) and Rule 4-1.5, Rules Regulating the Florida Bar. Specifically, this Court finds that counsel for Plaintiff, Kevin W. Whitehead, Esq., reasonably expended 64 hours in the prosecution of this breach of contract (PIP) lawsuit, and Richard Patino, Esq., reasonably expended 131.5 hours in the prosecution of this breach of contract (PIP) lawsuit. This finding is based upon the time sheets filed by Kevin W. Whitehead, Esq. with this Court, the testimony from Kevin W. Whitehead, Esq., Richard Patino, Esq., and 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 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 $325.00 per hour for his time, and Richard Patino, Esq., is entitled to be compensated at the rate of $325.00 per hour for his time. 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 Richard Patino, Esq.
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 64 multiplied by the reasonable hourly rate of $325.00 for Kevin Whitehead, Esq. is $20,800.00 and the number of hours reasonably expended 131.5 multiplied by the reasonable hourly rate of $325.00 for Richard Patino is $42,737.50 for a total amount of $63,537.50.
5. This Court finds that Plaintiff’s counsel was entitled to collect a fee award from it on 4/18/05. Consequently, pursuant to Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So.2d 929 (Fla. 1996), Plaintiff’s counsel Downs Brill Whitehead is entitled to collect 7% interest per annum on the fee award of $20,800.00, from 4/18/05 through today for a total interest award in the amount of $502.61. Plaintiff’s counsel Richard Patino is entitled to collect 7% interest per annum on the fee award of $42,737.50, from 4/18/05 through today for a total interest award in the amount of $1,032.70.
6. This Court finds that pursuant to Plaintiff’s Contingency Fee Retainer agreement between Plaintiffs and their counsel, Richard Patino, Esq., and Kevin W. Whitehead, Esq. were 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” (principally tort and contract cases). The Court finds that for this case, the relevant market did not require a contingency fee multiplier to obtain competent counsel.
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). Specifically, the fee agreement between plaintiff and counsel in this case constituted a pure contingency fee arrangement, even though the amount of the fee was not to be determined by the amount of the recovery.
9. Consequently, pursuant to the foregoing cited authorities, this Court finds that a multiplier is not applicable in this case.
10. This Court finds that Richard Patino, Esq., and Downs Brill Whitehead, and Kevin W. Whitehead, Esq., are entitled to recover a reasonable attorney’s fee from Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, pursuant to Florida Statutes §627.736 and §627.428.
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 Plaintiff’s expert witness, Dan Kaufman, 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 5 hours and that a reasonable expert witness fee is $300 per hour. Consequently, Dan Kaufman, Esq. is entitled to be compensated for his expert witness services rendered in this matter in the amount of $1500.
12. This Court finds that Plaintiff’s counsel Richard Patino, Esq. is entitled to taxable costs in the amount of $449.03, all of which the Court determines to be taxable against Defendant.
13. This Court finds that Plaintiff’s counsel Downs Brill Whitehead is entitled to taxable costs in the amount of $348.03, all of which the Court determines to be taxable against Defendant.
14. For which let execution issue, the Plaintiff’s counsel Richard Patino, Esq. is awarded a total amount of $44,219.23 against the Defendant, United Automobile Insurance Company, 3909 N.E. 163rd Street, North Miami Beach, FL 33160, and that the check shall be made payable to Richard Patino, Esquire.
15. This Court finds that Richard Patino, Esq., is entitled to collect 7% interest per annum on the total award of $44,219.23 from the date of this Final Judgment through the date the total award is delivered to Richard Patino, Esq., Richard Patino, P.A., 13105 Coronado Lane, North Miami, FL 33181.
16. For which let execution issue, the Plaintiff’s counsel Downs Brill Whitehead is awarded a total amount of $21,650.64 against the Defendant, United Automobile Insurance Company, 3909 N.E. 163rd Street, North Miami Beach, FL 33160, and that the check shall be made payable to Downs Brill Whitehead, P.A.
17. This Court finds that Downs Brill Whitehead, is entitled to collect 7% interest per annum on the total award of $21,650.64 from the date of this Final Judgment through the date the total award is delivered to Downs Brill Whitehead at 55 Miracle Mile, Suite 200, Coral Gables, FL 33134.
18. 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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