12 Fla. L. Weekly Supp. 501c
Attorney’s fees — Insurance — Personal injury protection — Contingency risk multiplier — Where relevant market requires application of multiplier for medical provider to find competent counsel, amount in controversy was small, results obtained were excellent, contingency fee contract utilized was pure contingency fee agreement, and chance of success at outset was less than 50%, multiplier of 2.0 is appropriate — Costs, expert witness fee, and prejudgment interest awarded
DAMADIAN MRI IN ORLANDO, P.A., as Assignee of Jimmy Exalien, Plaintiff, v. PROGRESSIVE CASUALTY INSURANCE COMPANY, corporation authorized and doing business in the State of Florida, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 01-CC-2167-20-F. January 28, 2005. John R. Sloop, Judge. Counsel: Michael B. Brehne. Brian Forman.
FINAL JUDGMENT AWARDING ATTORNEY’S FEES AND COSTS
This cause came on to be heard before the Court on January 25, 2005, on the Plaintiff’s Application for Attorney’s Fees and Costs. Having viewed the evidence presented, the Court file and having heard live testimony, the Court makes the following findings:
1. The court holds that 37.6 hours is reasonable under the circumstance presented for Michael B. Brehne, Esquire’s attorney time prosecuting this case.
2. This court finds that this case is the type to which a multiplier be applied under the Rowe and Quanstrom guidelines. Specifically, the court finds that the relevant market requires the application of a multiplier in order for Plaintiff to find competent counsel. The Court finds that the litigation presented an undesirable claim, and that with the issues presented in this case, Plaintiff could not have obtained competent counsel on a standard contingency fee unless a multiplier was used. The factors set forth in Rowe have also been met. Specifically, the amount in controversy was small; the results obtained were excellent with Defendant having to pay all benefits available to Plaintiff. Finally, the contingency fee contract utilized by Plaintiff was a pure contingency fee agreement which allowed for a contingency risk multiplier.
3. The Court finds that a multiplier of 2.0 is appropriate as Plaintiff’s chance of success at the outset of the case was less than 50%. This is because Defendant refused to pay for charges submitted for MRI services received by Jimmy Exalian at the office of Damadian MRI based on the Defendant’s belief that they were not responsible for the bill because of:
· Defendant’s belief that Plaintiff failed to comply with all the statutory prerequisites to bringing this action as Plaintiff failed to provide Progressive with written notice of a covered loss and the amount of same and any and all documentation to support such loss.
· Defendant’s belief that Plaintiff failed to comply with all policy prerequisites to bringing this action as Plaintiff failed to provide Progressive with written notice of a covered loss and the amount of same, and any and all documentation to support such loss.
· Defendant’s belief that Plaintiff has failed to satisfy all conditions precedent to obtain PIP benefits under the Progressive insurance policy involved in this claim.
· Defendant’s belief that Plaintiff’s claim has failed to satisfy the requirement imposed by Fla. Stat. Sect. 627.736(1). Specifically, those medical services provided by the Plaintiff was medically unnecessary, unrelated to the accident, and/or the charges for said medical services were unreasonable.
· Defendant’s belief that Plaintiff failed to submit reasonable proof of a covered loss to Progressive as a result of which benefits were not due as stated in Fla. Stat. Sect. 627.736(4).
· Defendant’s belief that Plaintiff lacks standing to the extent that it has no assignment of benefits.
· Defendant’s belief that Plaintiff had a preferred provider contract with Beech Street and agreed to specific amounts in payment of their medical bills.
· Defendant’s belief that Plaintiff failed to timely submit bills for payment in violation of the 30 day billing requirement.
4. The Plaintiff’s attorney was required to litigate this case until the Defendant was ordered to pay the benefits that were at issue in this lawsuit.
5. A reasonable attorney’s fee for the Plaintiff’s attorney for the underlying claim is therefore calculated as follows: 37.6 hours x $325.00 per hour x 2.0 (multiplier) = $24,440.00.
6. The court finds that $195.50 is due and payable to the Plaintiff’s attorney as and for costs associated with the prosecution of the Plaintiff’s claim.
7. The court finds that Plaintiff’s attorney is entitled to interest on the attorney’s fees at 7% from the date of confession of judgment the entry of final judgment through the date of this order (194) in the amount of $909.30. Quality Engineering Installation v. Higley South, Inc., 670 So.2d 929 (Fla. 1996); Orlando Regional Med. Ctr., Inc. v. Chmielewski, 573 So.2d 876 (Fla. 5th DCA 1990). Plaintiff’s expert witness on attorney’s fees, Kevin Weiss, Esq., is entitled to be compensated for the time he expended in preparing to testify and testifying in this case. Mr. Weiss expended 5.0 hours in this case, and a reasonable hourly rate for is $350.00 per hour. See, Stokus v. Phillips, 651 So.2d 1244 (Fla. 2d DCA 1995).
IT IS THEREFORE ORDERED AND ADJUDGED as follows:
1. Plaintiff’s attorney shall have and recover from the Defendant, PROGRESSIVE CASUALTY INSURANCE COMPANY, a corporation authorized and doing business in the State of Florida the sum of $24,440.00 as attorney’s fees, together with the sum of $195.50 as and for costs associated in this matter for which let execution issue forthwith.
2. Plaintiff’s attorney shall have and recover from the Defendant, PROGRESSIVE CASUALTY INSURANCE COMPANY, interest on the attorney’s fees at 7% from the date of the Judgment through the date of this order (194) in the amount of $909.30 for which let execution issue forthwith.
3. Plaintiff shall have and recover as expert witness fees for Kevin Weiss, Esquire from the Defendant, PROGRESSIVE CASUALTY INSURANCE COMPANY, fees in the amount $1,750.00 for the time expended in this case for which let execution issue forthwith.
4. Plaintiff shall take from Defendant, PROGRESSIVE CASUALTY INSURANCE COMPANY, the TOTAL SUM of $27,294.80 as attorney’s fees and costs for prosecution of this claim for which let execution issue forthwith.
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