12 Fla. L. Weekly Supp. 371a
Attorney’s fees — Insurance — Personal injury protection — Contingency risk multiplier — Where counsel for medical provider was employed on pure contingency basis, relevant market does require multiplier to obtain competent counsel, counsel was unable to mitigate risk of nonpayment in any way, and likelihood of success at outset of case was more than 50%, multiplier of 1.5 is appropriate — Expert witness fee and costs awarded
CICERO ORTHO-MED CENTER, INC., and TRAUMATOLOGY REHAB. CENTER, INC., as assignees of William Guzman, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 02-8119 SP 25 (2). January 26, 2005. Philip Cook, Senior Judge. Counsel: Kevin W. Whitehead, Downs, Brill, Whitehead, for Plaintiff. Nicole Malick.
ORDER AND FINAL JUDGMENT FOR ATTORNEY’S FEES AND COSTS
THIS CAUSE having come to be heard on January 26th, 2005, after due notice to all parties, on Plaintiff’s, CICERO ORTHO-MED CENTER, INC., and TRAUMATOLOGY REHAB. CENTER, INC., as assignees of William Guzman’s, Motion to Determine Amount of Attorney’s Fees and Costs, after due notice to the parties, the Court having reviewed the record, heard argument of counsel, the evidence presented at the hearing, testimony from expert witnesses, and having been otherwise fully advised in the premises
It is ORDERED AND ADJUDGED as follows:
1. This Court finds that CICERO ORTHO-MED CENTER, INC., and TRAUMATOLOGY REHAB. CENTER, INC., as assignees of William Guzman, and their attorneys, Downs Brill Whitehead (formerly known as Downs & Associates, P.A.), are entitled to recover reasonable attorney’s fees 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) and Rule 4-1.5, Rules Regulating the Florida Bar. Specifically, this Court finds that counsel for Plaintiff, Kevin W. Whitehead, Esq., reasonably expended 91.3 hours in the prosecution of this breach of contract (PIP) lawsuit, and Zachary McWilliams, Esq., reasonably expended 12.5 hours in the prosecution of this breach of contract (PIP) lawsuit. This finding is based upon the time sheets and affidavits filed by Kevin W. Whitehead, Esq. with this Court, the testimony from Kevin W. Whitehead, 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 $275.00 per hour for his time, and Zachary McWilliams, Esq., is entitled to be compensated at the rate of $200.00 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 Zachary McWilliams, 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 91.3 multiplied by the reasonable hourly rate of $275.00 for Kevin Whitehead, Esq. is $25,107.50 and the number of hours reasonably expended 12.5 multiplied by the reasonable hourly rate of $200.00 for Zachary McWilliams is $2,500.00 for a total amount of $27,607.50.
5. This Court finds that pursuant to Plaintiff’s Contingency Fee Retainer agreement between Plaintiffs and their counsel, Kevin W. Whitehead, 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” (principally tort and contract cases). The Court finds that for this case, the relevant market did x / did not _____ require a contingency fee multiplier to obtain competent counsel, and that counsel for Plaintiff was unable to mitigate the risk of nonpayment in any way. This Court has also considered all of the factors in Rowe and Rule 4-1.5 of the Rules regulating the Florida Bar.
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 plaintiff and counsel in this case constituted a pure contingency fee arrangement; the amount of the fee was not to be determined by the amount of the recovery.
8. Consequently, pursuant to the foregoing cited authorities, this Court finds that a multiplier is x / is not applicable in this case.
9. This Court finds that at the outset of the case, the Plaintiff’s likelihood of success was greater than 50% x /was 50-50 ____ / less than 50% _______ .
10. Accordingly, this Court hereby applies a multiplier of 1.5 to the loadstar of fees.
11. This Court finds that Plaintiff’s counsel was entitled to collect a fee award from it on 4/22/04, the date of the Court’s Order granting the Plaintiff’s Motion for Directed Verdict at 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 $41,411.25 from 4/22/04 through today for interest in the amount of $2,183.78.
12. 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, 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 7 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 $2,275.00.
13. This Court finds that Plaintiff’s counsel is entitled to taxable costs in the amount of $4,122.50, all of which the Court determines to be taxable against Defendant.
14. This Court finds that John Pinon, D.C. is entitled to an expert witness fee in the amount of $800.00, which represents 2 hours at $400.00 per hour.
15. For which let execution issue, the Plaintiff’s counsel is awarded a total amount of $50,729.53 against the Defendant, United Automobile Insurance Company, 3909 N.E. 163rd Street, North Miami Beach, FL 33160.
16. This Court finds that Downs Brill Whitehead is entitled to collect 7% interest per annum on the total award of $50,792.53 from the date of this Final Judgment through the date the total award is delivered to Kevin W. Whitehead, Esquire at Downs Brill Whitehead, 255 University Drive, Coral Gables, FL 33134.
17. 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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