12 Fla. L. Weekly Supp. 179a
Attorney’s fees — Insurance — Personal injury protection — Contingency risk multiplier — Where litigation presented undesirable claim for neuromuscular reeducation for which medical provider could not have obtained competent counsel on standard contingency fee unless multiplier was used, amount in recovery was small, results obtained were excellent, fee contract was pure contingency agreement which allowed for multiplier, and chance of success at outset was 50%, multiplier of 1.5 is appropriate — Costs, expert witness fee, and prejudgment interest awarded
KISSIMMEE MASSAGE THERAPY, INC., as Assignee of Megan Shephard, Plaintiff, v. PROGRESSIVE CONSUMERS 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. 02-SC-001310. September 29, 2004. Donald L. Marblestone, Judge. Counsel: Michael B. Brehne, for Plaintiff. Lisa S. Del Vecchio, Thompson Goodis Thompson Groseclose and Richardson, P.A., St. Petersburg.
FINAL JUDGMENT AWARDING ATTORNEY’S FEES AND COSTS
This cause came on to be heard before the Court on September 13, 2004, 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 50 hours is reasonable under the circumstance presented for Michael B. Brehne, Esquire’s attorney time prosecuting this case.
2. A reasonable hourly rate for Plaintiff’s attorney, Michael B. Brehne is $300 per hour.
3. This court finds that this case is the type to which a multiplier (should/should not) 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.
4. The Court finds that a multiplier of 1.5 is appropriate as Plaintiff’s chance of success at the outset of the case was (less than/equal to/greater than) 50%. This is because Defendant refused to pay for charges submitted for Neuromuscular Reeducation services (CPT Code 97112) received by Megan Shephard at the office Kissimmee Massage Therapy as they believed that the procedure code 97112 was inappropriate for the diagnosis listed. This was based on the Defendant’s belief that, according to the American Medical Association, the services described by CPT Code 97112 are frequently used by clinicians in treating individuals with severe conditions such as cerebral palsy, head injury, CVA, spinal cord injury, and other neuromuscular disorders. Accordingly, Progressive interpreted the AMA’s opinion as precluding massage therapists from billing such CPT code when using therapeutic massage on motor vehicle accident victims that did not have the “severe conditions”listed above.
5. For other dates of service, Defendant refused to pay for the multiple physical therapy treatments provided by Plaintiff on the same day of treatment because they had the “same physiological endpoint” and thus were inappropriately billed and not reimbursable. Specifically, Defendant believed that the multiple CPT codes billed by Plaintiff for the treatment rendered to Megan Shephard on various dates of service were in violation of the AMA guides and CPT coding and not reimbursable under the PIP statute.
6. Accordingly, the Plaintiff’s attorney was required to litigate this case until the Defendant agreed to pay the benefits that were at issue in this lawsuit.
7. A reasonable attorney’s fee for the Plaintiff’s attorney for the underlying claim is therefore calculated as follows: 50 hours x $300 per hour x 1.5 (multiplier) = $22,500.
8. The court finds that $870.65 is due and payable to the Plaintiff’s attorney as and for costs associated with the prosecution of the Plaintiff’s claim.
9. 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 through the date of the fee hearing (301 days) in the amount of $1,298.84. 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).
10. 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 5.5 hours in this case, and a reasonable hourly rate for Mr. Weiss is $300 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 Consumers Insurance Company, the sum of $22,500 as attorney’s fees, together with the sum of $870.65 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 Consumers Insurance Companies, interest on the attorney’s fees at 7% from the date of the Judgment through the date of the fee hearing (301 days) in the amount of $1,298.84 for which let execution issue forthwith.
3. Plaintiff shall have and recover as expert witness fees for Kevin Weiss, Esquire from the Defendant, Progressive Consumers Insurance Companies, fees in the amount $1,650 for the time expended in this case for which let execution issue forthwith.
4. Plaintiff shall take from Defendant, Progressive Consumers Insurance Companies, the TOTAL SUM of $26,319.49 as attorney’s fees and costs for prosecution of this claim for which let execution issue forthwith.
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