12 Fla. L. Weekly Supp. 814a
Attorney’s fees — Insurance — Personal injury protection — Contingency risk multiplier — Where market requires multiplier to procure competent counsel, attorney was not able to mitigate risk of nonpayment because insured could not afford hourly representation and attorney was not representing insured in any other action, there was significant time and labor involved in case, insured and attorney had pure contingency fee agreement, attorney obtained best possible result for insured, and at outset of case it was unlikely insured would prevail against insurer’s claim that policy was void ab initio due to insured’s failure to acknowledge on application that he used vehicle for business purposes, multiplier of 2.0 is appropriate — Costs, expert witness fee, paralegal fees and prejudgment interest awarded
JOHN H. BENSON, Plaintiff(s), vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant(s). County Court, 20th Judicial Circuit in and for Lee County, Civil Action. Case No. 02-2929-CC-MEG. March 31, 2005. Maria Gonzalez, Judge. Counsel: Evan D. Lubell, Berke, Lubell & Brunner, P.A., Cape Coral, for Plaintiff. Mark Crompton.
ORDER AND JUDGMENT ON PLAINTIFF’S MOTION TO TAX ATTORNEY’S FEES, LEGAL ASSISTANT FEES AND COSTS
THIS CAUSE having come before this court for hearing to determine Plaintiff’s Attorney’s Fees, Legal Assistant Fees and Costs with counsel for both sides present. The parties stipulated to the following: that the Plaintiff incurred $271.97 in recoverable costs; that $200.00 per hour was a reasonable rate for Plaintiff’s attorney, Evan D. Lubell; that 23.10 hours of attorney time was reasonably expended by attorney Evan D. Lubell for the prosecution of this claim; that $75.00 per hour was a reasonable rate for legal assistant fees; that 7.30 hours of legal assistant time was reasonably expended by attorney Evan D. Lubell’s legal assistant, Susan Hansen, for the prosecution of this claim; that $250.00 per hour was a reasonable rate for Plaintiff’s expert, attorney Scott Wm. Weinstein; and that 5.0 hours of attorney time was reasonably expended by attorney Scott Wm. Weinstein in preparing his expert opinions in this case.
In addition to the facts recited above, the court makes the following findings of fact and conclusions of law:
1. The subject lawsuit was filed on or about November 14, 2002.
2. This case involved a denial of personal injury protection coverage by defendant, Progressive Express Insurance Company, based on Plaintiff, John Benson’s alleged material misrepresentations in his application for insurance with Defendant. Based on the alleged misrepresentations, Defendant declared Mr. Benson’s insurance policy to be void ab initio, prior to the institution of the subject lawsuit. This was not a run-of-the-mill PIP suit, but rather a coverage case in which the insurer cancelled the policy because of alleged material misrepresentations.
3. The only contested issue at the hearing on attorney’s fees was in regards to the appropriateness of awarding a contingency fee risk multiplier. Utilizing the case of Standard Guaranty Insurance Company v. Quanstrom, 555 So. 2d 828 (Fla. 1990) and its progeny this court came to the conclusion that a multiplier is appropriate and necessary in this case. This court determined that the prevailing market does require a multiplier in order to procure competent counsel and that attorneys of skill and reputation similar to Mr. Lubell will not accept cases like the instant case without the possibility of a multiplier. In addition, Mr. Lubell was not able to mitigate the risk of non-payment because Mr. Benson could not afford hourly representation and because Mr. Lubell was not representing Mr. Benson in any other action. Mr. Benson was represented by the referring lawyer, Ty Roland in the underlying personal injury action and Mr. Roland, not Mr. Lubell, earned a fee in that other action. Turning to the factors cited in Florida Patient’s Compensation Fund vs. Rowe, 472 So.2d 1145 (Fla. 1985), this court finds: that there was significant time and labor involved with respect to this case; that Plaintiff had a pure contingency fee contract; that the amount in controversy was nearly $10,000; and that Plaintiff’s counsel obtained the best possible result for his client. This court also finds that at the outset of the case it was unlikely that Plaintiff would prevail based upon the following facts:
a. Plaintiff submitted an application for no fault benefits following his June 17, 1999 motor vehicle accident in which he stated that he had been working as a delivery driver since March 1998;
b. Plaintiff’s application for insurance with Defendant was completed in December 1998 and in said application Mr. Benson never acknowledged that he was employed as a delivery driver and in fact certified by signing the application that he had disclosed all employment information;
c. Mr. Benson’s employment records were subsequently obtained by Defendant and said records indicated that Mr. Benson actually began working as a delivery driver in January 1998. Therefore at the time he completed his insurance application with Defendant, Mr. Benson had allegedly been using his vehicle for business purposes for approximately eleven months, yet failed to include that information on his insurance application; and
d. That based on the above information the Defendant filed a Motion for Summary Judgment that was pending when this case was settled.
Based upon all of the above factors, the Court finds a multiplier of 2.0 to be appropriate.
4. Plaintiff is entitled to prejudgment interest on the attorney’s fees from the date of entitlement pursuant to Quality Engineering Installation v. Higley South, Inc., 670 So. 2d 929 (Fla. 1996). Accordingly, the Court finds that the award of attorney’s fees shall accrue interest from the date of May 28, 2004, when the entitlement to attorney’s fees became fixed.
Based on the above, the Court finds and it is ORDERED AND ADJUDGED that the Plaintiff shall recover the following sums by way of separate judgment to be entered forthwith:
A. Attorney time of 23.10 for Evan D. Lubell (number of hours reasonably and necessarily expended on obtaining disputed benefits) x $200.00 per hour (market rate) = $4620.00 (Loadstar) x 2.0 (Contingency Risk Multiplier) = $9,240.00 (total attorneys fees in obtaining Plaintiff’s recovery)
B. Paralegal time of 7.30 for Evan D. Lubell (number of hours reasonably and necessarily expended by Susan Hansen on obtaining disputed benefits) x $75.00 per hour (market rate) = $547.50.
C. Attorney time of 5.0 for Scott Wm. Weinstein (number of hours reasonably and necessarily expended to give expert testimony in this case) x $250.00 per hour (market rate) = $1,250.00.
D. Costs of $271.97 for attorney Evan D. Lubell.
E. Prejudgment interest from May 28, 2004, must be added to the attorneys fees of $9,240.00 awarded for the time of Evan D. Lubell at a rate of 7% which results in a per diem rate of $1.77 x 290 days (number of days between fee entitlement date and hearing date) = $513.90 (total prejudgment interest).
FINAL JUDGMENT
Pursuant to the attorney’s fee hearing in this matter and the Order on Attorney’s Fees, Paralegal Fees and Costs rendered in this action, it is
ORDERED AND ADJUDGED that the Plaintiff, JOHN BENSON, recovers from the Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, the sum of $11,823.37 for which sum let execution issue.
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