12 Fla. L. Weekly Supp. 402a
Attorney’s fees — Insurance — Personal injury protection — Contingency risk multiplier — Where attorney undertook representation of medical provider pursuant to pure contingency fee agreement, and medical provider’s chances of success at outset were approximately even, contingency risk multiplier of 1.75 is appropriate — Expert witness fee, costs, and prejudgment interest are awarded
AUGUSTINE V. JOSEPH, M.D., P.A., as assignee of RICHARD WALLAUER, Plaintiff, vs. NATIONWIDE MUTUAL INSURANCE COMPANY, a corporation authorized and doing Business in the state of Florida, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 04-SC-000977. December 21, 2004. John Sloop, Judge. Counsel: Kevin B. Weiss, Maitland, for Plaintiff. Michael Mills, Conroy, Simberg, et al., Orlando, for Defendant.
FINAL JUDGMENT AWARDING ATTORNEY’S FEES AND COSTS
THIS CAUSE came on to be heard on the Plaintiff’s Motion to Tax Attorney’s Fees and Costs of Kevin B. Weiss, and the Court having heard testimony, argument and examined the Court file, the Court makes the following findings of fact:
1. Plaintiff’s counsel, Kevin B. Weiss, Esquire, reasonably expended 108.9 hours in representing the Plaintiff in this cause.
2. Plaintiff’s counsel, Roy J. Smith, IV, Esquire, reasonably expended 1.1 hours in representing the Plaintiff in this cause.
3. A reasonable hourly rate to be paid by the Defendant to Plaintiff’s counsel, Kevin B. Weiss, Esquire, is $325.00 per hour.
4. A reasonable hourly rate to be paid by the Defendant to Plaintiff’s counsel, Roy J. Smith, IV, Esquire, is $325.00 per hour.
5. The Court finds that Mr. Weiss undertook the representation of the Plaintiff pursuant to a pure contingency fee agreement as defined in State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830 (Fla. 1993) and in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985).
6. The Court has considered all of the factors or criteria set forth in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985) as well as Standard Guaranty Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1985) and Bell v. U.S.B. Acquisition Co., Inc., 734 So.2d 403 (Fla. 1999). The Court has also considered the Fifth District Court of Appeals case, Holiday v. Nationwide, 864 So. 2d 1215 (Fla. 5th DCA 2004).
7. Taking into consideration the evidence provided by the attorneys and the expert at the fee hearing, as well as the above law, the Court finds that the Plaintiff’s chances of success at the outset or onset of this case were:
___ less than even (x 2.0-2.5)
x approximately even (x 1.5-2.0)
___ more likely than not (x 1.0-1.5)
This multiplier is awarded based upon the facts and arguments presented to the Court at the hearing.
Accordingly, a contingency risk multiplier of 1.75 is appropriate and applicable.
8. That based upon this Court’s determination, the total attorney’s fees that the Plaintiff is entitled to recover from the Defendant for the services of its attorneys before this Court is $62,562.50.
9. The Court considered the testimony of Plaintiff’s expert fee witness, Glenn Klausman, Esq., and determines that a reasonable hourly rate for his services is $400.00 per hour for 6 hours. Accordingly, Plaintiff is entitled to an expert witness cost award in the total amount of $2,400.00. Mangel v. Bob Dance Dodge, Inc. (5th DCA 9-10-99); Straus v. Morton, 478 So.2d 472.
10. In addition to the above expert witness fees, Plaintiff’s counsel, Kevin B. Weiss, incurred reasonable costs in the amount of $1,469.40 during the representation of the Plaintiff in this case.
11. Prejudgment interest at 7% per annum is due to Plaintiff’s counsel on the attorneys’ fee and costs from 9/13/04 until the entry of this final judgment pursuant to Quality Engineering, Inc. v. Higley South, Inc., 670 So.2d 929. Thus, the total amount of prejudgment interest due is $1,199.82.
WHEREFORE, it is hereby ORDERED AND ADJUDGED:
1. That Plaintiff’s Motion to Tax Attorney’s Fees and Costs is hereby GRANTED.
2. That Plaintiff’s counsel, Kevin B. Weiss does have and recovers from the Defendant Nationwide Mutual Insurance Company, a reasonable attorney’s fee in the amount of $62,562.50 and costs in the amount of $3,869.40 for a total sum of $66,431.90, together with prejudgment interest in the amount of $1,199.82 for a total amount of $67,631.72, for which let execution issue forthwith. Post-judgment interest shall be due on this judgment pursuant to F.S. Section 55.03.
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