12 Fla. L. Weekly Supp. 481a
Attorney’s fees — Insurance — Personal injury protection — Contingency risk multiplier — Where counsel for insured was employed on pure contingency basis and counsel was unable to mitigate the risk of nonpayment in any way, but relevant market did not require multiplier to obtain competent counsel, multiplier is not applicable — Expert witness fee, costs, and prejudgment interest awarded
NELSON MILIAN, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 02-4020 CC 25 (2). February 9, 2005. Cristina Pereyra-Shuminer, Judge. Counsel: Kevin W. Whitehead, Downs Brill Whitehead, Coral Gables. Russell Kolodziej. Dean Mitchell.
ORDER AND FINAL JUDGMENT FOR ATTORNEY’S FEES AND COST
THIS CAUSE having come to be heard on February 9th, 2005 after due notice to all parties, on Plaintiff’s, NELSON MILIAN’s, Motion to Determine Amount of Attorney’s Fees and Costs, the Court having reviewed the record, heard argument of counsel, the evidence presented at the hearing, testimony from expert witnesses, and having been otherwise fully advised in the premises
It is ORDERED AND ADJUDGED as follows:
1. This Court finds that Downs Brill Whitehead (formerly Downs & Associates, P.A.), Kevin W. Whitehead, Esq., Zach McWilliams, and Dean Mitchell, Esq., are entitled to recover a reasonable attorney’s fee from Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, pursuant to Florida Statute §627.736 and §627.428.
2. This Court has considered all of the factors enumerated in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985) and Rule 4-1.5, Rules Regulating the Florida Bar. Specifically, this Court finds that counsel for Plaintiff, Kevin W. Whitehead, Esq., reasonably expended 131 hours in the prosecution of this breach of contract (PIP) lawsuit, Zach McWilliams reasonably expended 2.5 hours in the prosecution of this breach of contract (PIP) lawsuit, and Dean Mitchell, Esq., reasonably expended 37 hours in the prosecution of this breach of contract (PIP) lawsuit. This finding is based upon the time sheets filed by Kevin W. Whitehead, Esq., with this Court, time sheets filed by Dean Mitchell, Esq. with the Court, and the testimony from Kevin W. Whitehead, Esq., and Dean Mitchell, Esq., and expert witnesses at the fee hearing.
3. Pursuant to Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985) and the factors enumerated in Rule 4-1.5, Rules Regulating the Florida Bar, this Court finds that Kevin W. Whitehead, Esq. is entitled to be compensated at the rate of $300.00 per hour for his time, Zach McWilliams, Esq., is entitled to be compensated at the rate of $215 per hour for his time and Dean Mitchell, Esq., is entitled to be compensated at the rate of $350 per hour for his time. This finding is based upon evidence presented concerning fees customarily charged in Miami-Dade County by lawyers of reasonably comparable skill, experience and reputation for the quality of legal services performed in this case, the time limitations imposed by the circumstances, the nature and length of the professional relationship between Plaintiff and counsel and the experience, and the reputation and ability of Kevin W. Whitehead, Esq., Zach McWilliams, and Dean Mitchell, Esq.
4. Pursuant to Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), this Court finds that the lodestar, the number of hours reasonably expended by Kevin W. Whitehead, Esq. 131 multiplied by the reasonable hourly rate of $300.00 for Kevin Whitehead, Esq. is $39,300, the number of hours reasonably expended by Zach McWilliams, Esq. 2.5 multiplied by the reasonable hourly rate of $215 for Zach McWilliams, Esq. is $537.50 and the number of hours reasonably expended by Dean Mitchell, Esq. 37 multiplied by the reasonable hourly rate of $350 for Dean Mitchell is $12,950, for a total lodestar amount of $52,787.50.
This Court finds that pursuant to Plaintiff’s Contingency Fee Retainer agreement between Plaintiffs and their counsel, Kevin W. Whitehead, Esq. and Dean Mitchell, Esq., was employed on a pure contingency basis and consequently, this Court must consider a contingency risk factor (multiplier) since it is awarding a statutorily-directed reasonable attorney fee (pursuant to Florida Statute §627.428).
6. This Court has considered all of the factors enumerated in Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990). Specifically, This Court finds that this is a “category two case” (principally tort and contract cases). The Court finds that for this case,
the relevant market did not require a contingency fee multiplier to obtain competent counsel.
7. This Court has considered all of the factors enumerated in Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990). Specifically, This Court finds that this is a “category two case” (principally tort and contract cases). The Court finds that for this case, the relevant market did not require a contingency fee multiplier to obtain competent counsel, and that counsel for Plaintiff was unable to mitigate the risk of nonpayment in any way. This Court has also considered all of the factors in Rowe and Rule 4-1.5 of the Rules Regulating the Florida Bar.
8. This Court has considered all of the factors enumerated in State Farm Fire & Casualty v. Palma, 555 So.2d 836 (Fla. 1990) and 629 So.2d 830 (Fla. 1993). Specifically, the fee agreement between plaintiff and counsel in this case constituted a pure contingency fee arrangement; the amount of the fee was not to be determined by the amount of the recovery.
9. Consequently, pursuant to the foregoing cited authorities, this Court finds that a multiplier is not applicable in this case.
10. This Court finds that at the outset of the case, the Plaintiff’s likelihood of success was greater than 50% N/A /was 50-50 N/A /was less than 50% N/A.
11. Accordingly, this Court hereby applies a multiplier of N/A to the lodestar amount of attorney’s fees.
12. This Court has considered Florida Statute, §92.231 and Stokus v. Phillips, 651 So.2d 1244 (Fla. 2d DCA 1995). The Court finds that Plaintiffs expert witness, Dan Kaufman, Esq., expected to be compensated for the services he rendered in this case. This Court finds that a reasonable amount of time expended by Plaintiff’s expert witness in this case is 7 hours and that a reasonable expert witness fee is $275 per hour. Consequently, Dan Kaufman, Esq. is entitled to be compensated for her expert witness services rendered in this matter in the amount of $1925.00.
13. This Court finds that Plaintiff’s counsel was entitled to collect a fee award from it on 11/2/04, the date of the hearing where the Court granted the Plaintiff’s Motion for Summary Judgment. Consequently, pursuant to Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So.2d 929 (Fla. 1996), Plaintiff’s counsel is entitled to collect 7% interest per annum on the fee award of $52,787.50 from 11/2/04 through today for interest in the amount of $981.93.
14. This Court finds that Plaintiff’s counsel is entitled to taxable costs in the amount of $2161.50, all of which the Court determines to be taxable against Defendant.
15. For which let execution issue, the Plaintiff’s counsel, Downs Brill Whitehead, and Dean Mitchell, Esq., is awarded a total amount of $57,855.93 against the Defendant, United Automobile Insurance Company, 3909 N.E. 163rd Street, North Miami Beach, FL 33160, made payable to Downs Brill Whitehead.
16. This Court finds that the Plaintiffs’ counsel are entitled to collect 7% interest per annum on the total award of $57,855.93 from the date of this Final Judgment through the date the total award made payable to Downs Brill Whitehead, is delivered to Kevin W. Whitehead, Esquire at Downs Brill Whitehead, 255 University Drive, Coral Gables, FL 33134.
17. This Court reserves jurisdiction to enforce this Final Judgment, as well as any previous Judgments and/or Orders in this matter, and to do any and all other acts necessary in this cause.
* * *
