12 Fla. L. Weekly Supp. 180b

Attorney’s fees — Insurance — Personal injury protection — Contingency risk multiplier — Where medical provider’s chances of success were approximately even at outset of case, multiplier of 1.5 is appropriate — Expert witness fees, costs, and prejudgment interest awarded

ELISA CAPUTO, Plaintiff, v. PROGRESSIVE EXPRESS 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. 03-CC-1867-20-U. September 22, 2004. Donald L. Marblestone, Judge. Counsel: Kimberly A. Driggers. Sandra Kotur.

FINAL JUDGMENT AWARDING COSTS AND ATTORNEY’S FEES

This cause came on to be heard before the Court on Wednesday, August 9, 2004, on Plaintiff’s application for attorney’s fees and costs. Having viewed the evidence presented, the Court file, and having heard live testimony of counsel and experts, the Court makes the following findings:

NUMBER OF HOURS

1. The parties have stipulated to the Plaintiff’s attorney, Mark A. Nation’s, claim of 2.9 hours for attorney’s time.

2. The parties have stipulated to the Plaintiff’s attorney, Kimberly A. Driggers, claim of 10.3 hours for attorney’s time. Plaintiff has supplied the Court with detailed timesheets documenting Plaintiff’s counsels’ time expenditure.

3. Having reviewed Plaintiff’s time affidavit and considering the stipulations entered into regarding the number of hours expended by Plaintiff counsel, and having presided over this matter, the Court finds that 2.9 hours were reasonably expended by Mark A. Nation and 10.3 hours were reasonably expended by Kimberly A. Driggers in the prosecution of this case.

HOURLY RATE

4. The parties have stipulated to Mr. Nation’s hourly rate of $350.00 per hour; and to Ms. Driggers’ hourly rate of $300.00 per hour.

5. The Court finds that $350.00 per hour is a reasonable hourly rate for Mr. Nation; and that $300.00 per hour is a reasonable hourly rate for Ms. Driggers in this case.

CONTINGENT FEE MULTIPLIER

6. Plaintiff’s attorney, Kim Driggers and Plaintiff’s expert, Mr. Weiss, both testified that a multiplier was necessary to obtain competent counsel in this case, and that the likelihood of success was approximately even at the outset, warranting a multiplier of 1.5-2.0. Defense expert, Tim DePalma testified this case did not warrant a multiplier.

7. The Court finds that the Plaintiff’s chances of success at the outset of this case were:

___ more likely than not (x1.0-1.5)

X approximately even (x 1.5-2.0)

___ unlikely (x2.0-2.5)

Accordingly, a contingency risk multiplier of 1.5 is appropriate and applicable.

8. At the outset of this case, the Plaintiff knew the following:

· This case involved a termination of chiropractic benefits after five months of treatment;

· The Plaintiff never received any treatment at a hospital or from any other doctor following the accident;

· The IME findings revealed no objective findings and full ranges of motion;

· The Plaintiff made statements during the IME that she was “fine”.

· This case involved what appeared to be minimal property damage indicated on the police report ($50.00 in damage) but a statement by the Plaintiff to the IME doctor that the accident occurred at a high rate of speed;

· Progressive handled this claim under a Reservation of Rights, questioning whether or not the accident even occurred based upon the fact that Ms. Caputo’s name was not listed on the police report.

· Progressive issued one check which covered three dates of service, all after the termination of chiropractic benefits, and never requested a refund of this payment;

9. As a result of this litigation, Defendant paid all of Ms. Caputo’s out-of-pocket medical bills.

10. A reasonable attorney’s fee for the Plaintiff’s attorneys for the underlying claim is therefore calculated as follows:

2.9 hours x $350.00 per hour (Mr. Nation) = $1,015;

+ 10.3 hours x $300.00 per hour (Mrs. Driggers) = $3,090

= LODESTAR: $4,105

x 1.5 (multiplier) = $6,157.50.COSTS

11. The parties stipulated to Plaintiff’s costs in the amount of $115.50.

12. This Court finds that $115.50 in costs was reasonable in the prosecution of this case.

PRE-JUDGMENT INTEREST

13. Plaintiff’s counsel are entitled to interest on the attorney’s fees and costs at 7% from the date the claims were paid through the date of the fee hearing (274 days through Monday, August 9, 2004). 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).

14. Plaintiff’s attorney shall have and recover from the Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, interest on the attorney’s fees and costs at 7% from the date of the payment of the claims through the date of the fee hearing (274 days) in the amount of $329.63 (.07/365 x 274 =.05 x fees and costs = pre-judgment interest).

EXPERT WITNESS FEES

15. Plaintiff’s expert witness on attorney’s fees, Kevin B. Weiss, Esquire, is entitled to be compensated for the time he expended in preparing to testify and testifying in this case. Mr. Weiss expended 4.0 hours in this case, and a reasonable hourly rate for Mr. Weiss is $325 per hour. See Stokus v. Phillips, 651 So.2d 1244 (Fla. 2d DCA 1995).

IT IS THEREFORE ORDERED AND ADJUDGED as follows:

Plaintiff’s attorneys shall have and recover from the Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, the sum of $6,157.50 as attorney’s fees, $115.50 as costs, and $329.63 as pre-judgment interest, for a total amount of $6,602.63.

Plaintiff’s expert witness on attorney’s fees, Kevin B. Weiss, Esquire shall have and recover from the Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, fees in the amount $1,300 for the time expended in this case.

The above shall bear interest at the rate of 7% a year, for which let execution issue.

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