12 Fla. L. Weekly Supp. 475a
Attorney’s fees — Insurance — Personal injury protection — Contingency risk multiplier of 2.5 is appropriate — In addition to other factors, case represented issues more complex than typical PIP case in that it was discovered during treatment for injuries sustained in automobile collision that plaintiff suffered from Demyelenating brain disease, or M.S., and it was possible that treatment prescribed by treating medical provider which was appropriate for collision-related injuries may have made M.S. symptoms worse rather than better — Although plaintiff only recovered interest in the amount of $27.11, insurer cannot use argument of minimal results where, less than a week after being served with lawsuit, insurer paid out balance of benefits from policy to another medical provider, thereby exhausting benefits due on behalf of the plaintiff
DANIELLE MARIE PACK, Plaintiff, vs. PROGRESSIVE AUTO PRO INSURANCE COMPANY, Defendant. County Court, 1st Judicial Circuit in and for Escambia County. Case No. 2003 SC 007404, Division V. July 5, 2004. Patricia A. Kinsey, Judge. Counsel: Arthur A. Shimek, Law Offices of Arthur A. Shimek, P.A., Pensacola, for Plaintiff. Vicki S. Graves, for Defendant.
ORDER GRANTING PLAINTIFF ATTORNEY’S FEES
At a hearing in open court on June 30, 2004, the parties agreed that plaintiff’s attorney is entitled to an award of attorney’s fees and costs. The court, having heard the testimony and argument of counsel, the testimony of expert witnesses, reviewed the exhibits and case law presented, makes the following determinations in accord with Florida Patients Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), Standard Guaranty Insurance Company v. Quanstrom, 555 So.2d 828 (Fla. 1990) and The Florida Rules of Professional Conduct Rule 4-1.5(b).
First the court reviewed the time spent by Mr. Shimek. This case is unusual as it was resolved through Default when the defendant did not appear for pretrial conference. Although the defendant eventually filed a Motion to Set Aside Default, the court, having reviewed the file and having set aside this type of default for the defendant in the past, entered an Order denying defendant’s motion just days before the scheduled hearing. Since the court’s Order was novel in the sense that it was the first time this court has declined to set aside a clerk’s Default under these circumstances, there was no doubt a great deal of research in preparation for fighting defendant’s motion and deciding how to handle the court’s Order. Mr. Shimek documented with sufficient detail a total of 14.2 hours of his time. By way of contrast, the attorneys for the defense did not submit for consideration the amount of time defense counsel spent on this case. However, one would not expect there would have been much time spent since Progressive did not forward a case file to defense counsel until after the scheduled Pre Trial Conference.
This case presented issues which were much more complex than the typical PIP case. The plaintiff, while treating for injuries sustained in the November 20, 2002, automobile collision, failed to respond to treatment as expected. After incurring the expense of multiple chiropractic treatments, the plaintiff learned she suffered from Demyelenating brain disease. . . that is, M.S. Therefore, Mr. Shimek had to present a case where automobile collision injuries and related symptoms were being masked or over-laid by this degenerative disease. Furthermore, although treatment prescribed by the treating medical provider was appropriate for the collision related injuries, these same treatments may have made her M.S. symptoms worse rather than better. . . significant obstacles to overcome.
Although the defendant argues that since Mr. Shimek also handles plaintiff’s Bodily Injury claim, there should be significant economy of time based on the similar facts and issues presented, the court finds 14.2 hours for Mr. Shimek reasonable — in fact, probably very conservative.
Next the court must determine a reasonable hourly rate for Mr. Shimek. The court finds reasonable and credible the testimony of plaintiff’s expert, Robert Heath. Mr. Heath has twenty-three years of trial experience working both with a highly respected firm (McDonald, Fleming) and on his own. He is board certified in civil practice by both the Florida Bar and the National Board of Trial Advocacy, a former Florida Bar officer, member of the Insurance Task Force, as well as Association of Florida Trial Lawyers and American Board of Trial Lawyers. He is also a published author in the area of PIP claims and a frequent seminar presenter in PIP and related issues. Although his trial experience includes both criminal and civil, since 1984, his practice has been primarily civil, handling hundreds of PIP cases in the past five years. For this case, he researched various plaintiff’s and insurance defense attorney’s firms within the local community, relied on his own personal knowledge and experience, and testified that the prevailing market rate for an attorney with Mr. Shimek’s reputation, knowledge and experience is $275.00/hour.
The court has reviewed the testimony and personally observed Mr. Shimek’s experience, reputation, diligence and ability in representing his clients in general and this client in particular. Mr. Shimek’s more than twenty years of experience, his reputation in the community (“among the top attorneys in his age group in the personal injury area”) and the results he forged from what appeared at first a nearly impossible set of facts, reflect brightly on his skill and expertise — and it must be mentioned, luck.
While the court is mindful of the considerably lower hourly rate charged by the defense attorneys, the competition in this area for insurance defense work is well known and has been documented at many attorney’s fee hearings. Therefore, based on the issues involved, Mr. Shimek’s experience and expertise, the prevailing market and standards within this community, and the quality of the legal work performed, the court finds that a reasonable rate for Mr. Shimek is $275.00/hour.
The court next examined whether or not a multiplier is justified in this case. It is well established that because of the small sums involved, litigants may be discouraged if they cannot recover an amount sufficient to cover their loss and attorneys fees. See Quanstrom at 833-834. Since PIP cases almost always involve a small sum, case law supports the application of a multiplier to attract good and competent attorneys who are willing to accept the risk of non-payment. Mere hourly wages could never fairly compensate for the risk involved where a fee is dependant on the successful outcome of a case. It is undisputed that Mr. Shimek accepted this case on a pure contingency fee basis.
“The contingency risk multiplier is intended to enhance the lodestar figure where a risk of nonpayment is established,” Aries Insurance Company vs. Aleman, 27 Fla. L. Weekly D920 (Fla. 3d DCA 2002). However, the court is not required to impose a multiplier in every case where the success of the case at the outset was unlikely. Id. The main focus of the court’s inquiry should be whether the relevant market requires a contingency fee multiplier to obtain competent counsel. (Emphasis added) Id. The evidence and the record establishes that in this community one could not attract or obtain competent counsel in cases such as this one without a contingency multiplier. While there are literally hundreds of attorneys in the Escambia-Santo Rosa County area, there are only a handful who will even accept a PIP case. Of that “handful,” only three or four have the experience and reputation to be considered “upper-level” lawyers, The balance are “young” lawyers establishing their practices, taking a variety of work in their practice without real specialties. The PIP law changes so rapidly and substantively that without a multiplier, the community would not be able to provide experienced, competent counsel to file PIP cases.
In applying the Quanstrom factors, the court finds that the evidence established Mr. Shimek was not able to mitigate the risk of nonpayment in any way other than by litigating this case to a very fortunate end in Default. Less than a week after being served with this lawsuit, Progressive paid out the balance of benefits from this policy to another medical provider thereby exhausting the benefits due on behalf of this plaintiff. Although the plaintiff only recovered interest in the amount of $27.11, the defendant controlled the results by choosing to pay another medical provider rather than the services at issue in this case and therefore cannot use the argument of minimal results.
In its analysis the court then applied the factors set forth in Rowe. The use of a multiplier is further justified by the risk to Mr. Shimek in taking the case. Although fortuitously the case ended in Default, he agreed to help this client, despite her newly discovered medical condition. We took this risk knowing that he may well have been forced to devote countless hours pursuing the claim as once Progressive learned of her newly discovered M.S. diagnosis, they would surely have vigorously fought this claim. From the beginning, based on the small sum at controversy, the pure contingency fee contract and the physical/mental problems affecting the plaintiff’s ability to resolve the issues, this case posed a substantial risk to Mr. Shimek. Mr. Shimek accepted this case knowing there was a substantial probability that he would not prevail despite his perceived merits of the case.
When evaluating the Quanstrom imposed modification on Rowe to determine the likelihood of success at the onset of the case, the court notes several very important factors. First, since the plaintiff’s newly discovered medical condition would probably overwhelm the injury from the motor vehicle collision and proving the treatment was related to the collision would be difficult at best. The fact that the plaintiff’s treatment very likely caused more harm than good created the next hurdle. Finally, Progressive filed affirmative defenses (in its Motion to Set Aside Default) alleging Assignment of Benefits “standing” problems for the plaintiff and exhaustion of benefits.
If there were ever a case which falls into the category of “unlikely to succeed” this is that case. Although the defense labeled this case frivolous and perhaps even bordering on “the unspeakable”, and without merit from the onset, the plaintiff prevailed through Mr. Shimek’s hard work, experience, skill, timing and perhaps even a little luck.
Therefore, the court awards plaintiff a lodestar attorney’s fee of $3,905,00, which is the product of Mr. Shimek’s 14.2 hours at $275.00/hour. In addition, the court having found a multiplier is appropriate now increases the loadstar by a 2.5 multiplier for a total of $9, 762.50. Finally, pursuant to Rule 1.390(c), Fla.R.Civ.P, which includes the mandatory language that “an expert or skilled witness whose deposition is taken shall be allowed a witness fee in such reasonable amount as the court may determine.” See also Perez v. Progressive Auto Pro Insurance Company, 2003 SC 004173 (Seminole County Court, May, 2004). Therefore, having heard the testimony that defense counsel deposed plaintiff’s counsel and having reviewed deposition transcripts and it having been established that it consumed four hours of Mr. Shimek’s time to prepare, be deposed and prepare the errata sheet, Mr. Shimek is also entitled to $1,100.00 for his deposition testimony for a total of $10,862.10.
The defendant having stipulated to the Affidavit of Costs submitted with plaintiff’s Motion for Taxation of Costs, the court finds plaintiff is entitled to recover costs totaling $89.50.
In addition, plaintiff incurred costs for Mr. Heath’s services as an expert witness. Mr. Heath documented three hours of time reviewing the file and preparing for the hearing. Because the attorney’s fee hearing lasted over three hours, Mr. Heath’s time has been increased by that time for a total of six hours. Mr. Heath’s testimony reflects the amount of time, research, and expertise he brought to the court. The court finds his time is reasonable and a reasonable fee for his services is $300.00/hour for a total of $1,800.00. See Travieso v. Travieso, 474 So.2d 1184 (Fla. 1985); Stokus v. Phillips, 651 So. 2d 1244 (Fla 2d DCA 1995).
The parties have stipulated that the benefits owed to the plaintiff are $27.11.
ORDERED AND ADJUDGED that the total judgment, including benefits, attorney’s fees, taxable costs, expert witness fee shall be $12,778.71 for which let execution issue.
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