12 Fla. L. Weekly Supp. 238a

Attorney’s fees — Insurance — Personal injury protection — Entitlement — Proposal for settlement filed pursuant to section 768.79 is valid and entitles prevailing insurer to award of attorney’s fees — Where medical provider failed to acquiesce to entitlement to fees and costs, insurer is entitled to recover fees for litigating entitlement to fees, regardless of fact that case is hourly fees case rather than contingency fees case — Hours reasonably expended — Provider’s request to reduce fees sought is denied where expert’s opinion that there was excessive billing did not identify specific instances of excessive billing and claim that second defense attorney’s time was duplicative is refuted by time entries and testimony reflecting that attorney was integral part of trial — Expert witness fees and costs awarded

DR. RICHARD MERRITT, d/b/a CHIROPRACTIC HEALTH CENTER, as assignee of Carol Lockard, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 10th Judicial Circuit in and for Polk County. Case No. 01 SP12 1987. December 17, 2004. Karla Foreman Wright, Judge. Counsel: Paul P. Latvis. Chandra L. Miller, Thompson Goodis Thompson Groseclose & Richardson, P.A., St. Petersburg.

ORDER ON DEFENDANT’S AMENDED MOTION TO ASSESS FEES AND COSTS

This cause having come on to be heard before the Court on December 2, 2004, on the Defendant’s Amended Motion to Assess Fees and Costs, and the Court, having reviewed the Motion, the evidence presented, the Court file and having heard live testimony, makes the following findings of fact and Conclusions of Law:

Findings of Fact

1. The Plaintiff brought a claim against Defendant for breach of contract in an effort to recover Personal Injury Protection benefits under a policy of insurance issued by the Defendant to Carol Lockard.

2. On May 30, 2003, the Defendant filed the Proposal for Settlement which was filed with the Court in support of the Defendant’s Motion to Assess Fees and Costs and is a part of the record.

3. Plaintiff rejected the Proposal for Settlement and the case proceeded to trial, commencing on June 21, 2004.

4. Pre-trial activity consisted of extensive discovery, including depositions of treating physicians and expert witnesses.

5. Plaintiff identified eighteen witnesses by name, including a number of out-of-state physicians.

6. Plaintiff identified three experts, Dr. Humphreys, Dr. Leverone, and David Marcarian, all of whom he deposed by video for use at trial.

7. Dr. Humphrey’s and Dr. Leverone’s video depositions were shown to the jury in their entirety during the course of the trial. David Marcarian’s testimony was excluded by the Court pursuant to the Defendant’s Motion in Limine regarding same.

8. In addition to depositions, defendant issued a number of subpoenas to various treating physicians of Carol Lockard, as a result of her failure to completely identify the extent of her pre-existing conditions, history of accident-related injuries, and the treatment rendered as a result of same.

9. The plaintiff’s records were also voluminous, reflecting 120 dates of service over a period of four and one-half years. In fact, Dr. Merritt testified at trial that he or someone from his office had treated Ms. Lockard up to and including the first day of trial.

10. The trial lasted approximately three and one-half days, including jury selection and deliberation.

11. On June 24, 2004 the Defendant obtained a verdict in its favor following trial by jury.

12. On July 9, 2004, the Court entered a Final Judgment in favor of the Defendant.

13. Thereafter, on or about August 6, 2004, counsel for the Defendant filed an Amended Motion to Assess Fees and Costs together with supporting affidavits, evidencing for the Court that the Defendant had incurred defense fees and costs totaling $36,578.00 (attorneys fees), $240.00 (paralegal fees), and $13,357.29 (taxable costs).

14. In addition, counsel for Defendant amended the affidavit of fees on the day before the hearing to include post-trial time which had been incurred as a result of the Plaintiff’s refusal to acquiesce to entitlement, thereby making the total attorneys fees incurred to be $39,190.00.

15. A hearing on Defendant’s Amended Motion to Assess Fees and Costs was held on Thursday December 2, 2004, which included presentation of evidence to include invoices for costs incurred by the Defendant, as well as live testimony from Chandra Miller, Defendant’s expert, David Kampf, Esq. and Plaintiff’s expert, Bradley Souders, Esq.

16. Mrs. Miller testified that she has been practicing since 1998. She has tried two PIP jury trials to verdict, and has readied countless PIP cases for trial. She was retained by Progressive to defend its interest in the above-referenced matter, and although the matter was assigned to an associate, she was charged with overseeing and directing the defense of the file. She testified that her oral agreement was that she would charge $100.00/hour for attorney services (both partner and associate), $60.00/hour for paralegal services, and that Progressive would pay all costs associated with the defense of the claim.

17. Mr. Kampf testified that after reviewing the file materials, the affidavits and the Amended Motion to Assess Fees and Costs, that all of the time sought was reasonable and necessary. In addition, he testified that the requested costs were all recoverable as well.¹ Finally, Mr. Kampf testified that he agreed to review this matter for a fee of $175.00/hour and that he spent ten (10) hours on the file.

18. Bradley Souders testified that a reasonable number of hours to be expended by the Defense in the litigation of this claim would range somewhere between 200-237 hours. He also testified that after reviewing the cost affidavit he believed only $4,824.43 of the costs were taxable. He did, however, on cross-examination admit that he had deducted certain costs, including the witness fees for the video depositions, and the costs of the video depositions themselves, from the total costs based upon his erroneous assumption that the video depositions of Drs. Humphreys and Leverone were not played for the jury. Additionally, he did not allow for the appearance fee at the deposition of Dr. Richard Merritt, although he admitted on cross-examination that it would be appropriate for the court to allow for same.

19. Upon considering the evidence adduced during the evidentiary hearing, the trial court makes the following findings of fact relative to the criteria enumerated in Rowe:(1) “this was a complex case, involving some difficult issues relating to an Independent Medical Examination and subsequent suspension of benefits, coupled with a complicated patient who presented a long history of accident related treatments and multiple chiropractic treatments separate and apart from those rendered by the Plaintiff; (2) the matter required a high level of skill to effectively defend; (2) the hourly rate for services rendered by Defendant’s counsel was, even by Plaintiff’s own expert, a reasonable hourly rate; (3) the fees sought are reasonable for similar legal services in this locality; (4) the time expended in the defense of this matter was reasonable; (5) the attorneys involved in this case were able and experienced in the area of PIP litigation and obtained an excellent result for the Defendant; and, (6) the fee was fixed with no contingency.

20. These findings are based on the trial judge’s first-hand knowledge of the case, her understanding of the litigation, and her extensive contact with the parties and their counsel before, during, and after the trial.

Conclusions of Law

A. Entitlement

Section 768.79, Florida Statutes, applies to cases brought pursuant to section 627.736, Florida Statutes, and to cases pending in small claims court. Tran v. State Farm Fire and Casualty Company, 860 So.2d 1000 (Fla. 1st DCA 2003), rehearing denied, (denying Plaintiff’s Motion to Strike Defendant’s Proposal, for Settlement Pursuant to Section 768.79, Florida Statutes, in case where Fla. R. Civ. P. were not invoked) (citing, Nichols v. State Farm Mutual, 851 So.2d 742 (Fla. 5th DCA 2003); U.S. Security Insurance Co. v. Cahuasqui, 760 So.2d 1101 (Fla. 3d DCA 2000), review dismissed, 796 So.2d 532 (Fla. 2001). As Defendant’s Proposal for Settlement was filed pursuant to section 768.79, Florida Statutes, it is valid and the Defendant is entitled to collect thereon.

Plaintiff also failed to acquiesce to entitlement to fees and costs, arguing, even at the hearing, that the Defendant was not entitled to fees and costs. As a result, this case falls into the cases involving litigation of entitlement to fees even after the conclusion of trial. Florida courts have recognized that when a party fails to acquiesce to entitlement, the moving party is entitled to recover all fees, including those fees incurred with post-trialdiscovery. State Farm Fire & Casualty Co. v. Palma, 629 So.2d 830, 833 (Fla. 1993), (holding that attorney’s fees may properly be awarded under section 627.428, Florida Statutes, for litigating the issue of entitlement to attorney’s fees. The Second DCA has declined to apply Palma only to contingency fee actions or to otherwise limit Palma‘s holding. Generally speaking, courts throughout Florida have interpreted Palma to apply not only to contingency fee cases, but to other matters as well. See, e.g., Mediplex Constr. of Fla., Inc. v. Schaub, 856 So.2d 13,14 (Fla.4th DCA 2003) (barring fees for fees under § 57.105(7), Fla. Stat. (2003), in contract dispute); Oruga Corp., Inc. v. AT & T Wireless of Fla., Inc., 712 So.2d 1141, 1145 (Fla. 3d DCA 1998) (barring fees for fees under offer of judgment statute §768.79(6)(a), Fla. Stat. (1995)); Dep’t of Transp. v. Robbins & Robbins, Inc., 700 So.2d 782,785(Fla. 5th DCA 1997) (barring fees for fees under §§73.091 and 73.092, Fla. Stat. (1993), in eminent domain proceeding). Although Palma was a case against an insurance carrier involving a contingency fee, the fact that this is an hourly fee case, as opposed to a contingency fee case, should not make a difference. Wight v. Wight, 880 So.2d 692 (Fla. 2d DCA 2004) (citing McMahan v. Toto, 311 F.3d 1077, 1085 (11th Cir. 2002) cert. denied sub nom. (Palma holding applied to hourly fee cases as well as contingency fee cases, referring to Palma wherein “[T]he Florida Supreme Court has explained that whether attorney’s fees should be awarded for litigating the amount of fees due depends on the purpose of the statute under which the fees are sought; it does not depend on the method of calculating them. Palma, 629 So.2d at 833.”); Nemesis Veritas, L.P. v. Toto, 539 U.S. 914, 123 S.Ct. 2273, 156 L.Ed.2d 129 (2003).

B. Reasonableness

In Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (Fla. 1985), the Supreme Court adopted the federal lodestar approach as the foundation for setting reasonable fee awards. “This approach requires the trial court to determine a ‘lodestar figure’ by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate for the services of the prevailing party’s attorney.” Fashion Tile & Marble v. Alpha One Constr., 532 So.2d 1306, 1308 (Fla. 2d DCA 1988). In undertaking this analysis, the trial court must consider separately the reasonableness of the hourly rate and the number of hours expended. Rowe, 472 So.2d at1150-51. “ ‘Reasonably expended’ means the time that ordinarily would be spent by lawyers in the community to resolve this particular type of dispute. It is not necessarily the number of hours actually expended by counsel in the case. Rather, the court must consider the number of hours that should reasonably have been expended in that particular case. . . . In this respect, the magnitude of the case should be a consideration.” Centex-Rooney Const. Co., Inc. v. Martin County, 725 So.2d 1255 (Fla. 4th DCA 1999) (citing, In re Estate of Platt, 586So.2d 328, 333-34 (Fla. 1991). In determining the reasonableness of attorneys’ fees, the court should utilize the following criteria:

(1) The time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal service properly.

(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.

(3) The fee customarily charged in the locality for similar legal services.

(4) The amount involved and the results obtained.

(5) The time limitations imposed by the client or by the circumstances.

(6) The nature and length of the professional relationship with the client.

(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.

(8) Whether the fee is fixed or contingent.

Rowe, 472 So.2d at 1150.

Although the fee applicant has the burden of establishing its entitlement to an award of attorneys’ fees, the opponent of the fee has the burden of pointing out with specificity which hours should be deducted. Centex-Rooney Const. Co., Inc. v. Martin County, 725 So.2d 1255 (Fla. 4th DCA 1999). Without citing any legal authority, Plaintiff’s expert requested a reduction of the fees sought but provided the Court with no specific instances of excessive billing. The only testimony was the Plaintiff’s opinion that there was excess billing in the amount of 106.5 hours. In addition, Mr. Souders sought to reduce Fotini Manolakos’ time during trial which he testified was duplicative. However, the affidavit and the time entries contained therein together with the testimony of Mrs. Miller reflect that Ms. Manolakos was an integral part of the trial, providing invaluable assistance by directing and cross examining two key witnesses (Carol Lockard and Linda Dufresne), working on trial exhibits, and assisting in drafting the opening and closing statements for trial. There were no precise objections made as to the existence of unreasonable or unnecessary attorney hours as required by law. Centex-Rooney Const. Co., Inc. v. Martin County, 725 So.2d 1255 (Fla. 4th DCA 1999), citing, Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1302 (11th Cir. 1988).

IT IS THEREFORE, ORDERED and ADJUDGED as follows:

1. Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY’s, Amended Motion to Assess Fees and Costs is hereby GRANTED.

2. 391.90 hours is reasonable under the circumstance presented for attorney time defending this case.

3. 4.0 hours is reasonable under the circumstances presented for paralegal time defending this case. Sixty dollars ($60.00) per hour is a reasonable hourly rate. The court awards Defendant $240.00 paralegal fee.

4. A reasonable hourly rate for Defendant’s attorneys is $100.00.

5. A reasonable attorneys’ fee for the Defendant’s attorneys for the underlying claim is therefore calculated as follows: 391.90 hours x $100.00 per hour = $39,190.00.

6. The Court finds that $12,857.29 is due and payable to the Defendant’s attorney for costs associated with the defense of this claim.

7. Defendant’s expert witness on attorneys’ fees, David Kampf, Esq., is entitled to be compensated for the time he expended in preparing to testify and testifying in this case. Mr. Kampf expended 10 hours in this case, and a reasonable hourly rate for Mr. Kampf is $175.00 per hour. Stokus v. Phillips, 651 So.2d 1244 (Fla. 2d DCA 1995). The court awards Defendant $1,750.00 expert witness fee.

8. Defendant’s attorney shall have and recover from the Plaintiff the sum of $39,190.00 as attorneys’ fees, together with the sum of $14,847.29 and for costs associated in this matter (including paralegal time and the costs associated with the retention of David Kampf, Esq.) for a TOTAL SUM OF $54,037.29, for which let execution issue.

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¹At the hearing, counsel for the defendant conceded on two cost items, those being two invoices from Dr. John Kurpa, totaling $500.00. As a result of the concession, the total costs sought were $12,857.29.

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