12 Fla. L. Weekly Supp. 234a
Attorney’s fees — Insurance — Personal injury protection — Appellate fees — Contingency risk multiplier — Where medical provider employed same attorney from beginning of litigation through appeal, both trial and appellate work were governed by contingency fee agreement, and probability of success was 50/50 at outset of case but chance of prevailing on appeal was excellent, court is required to apply same 2.4 multiplier for appellate work as was applied for trial work — Expert witness fee and costs awarded
NU-BEST DIAGNOSTICS LABS, as assignee of DARLENE PIERRE, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 1998-SCO-7796-O. December 3, 2004. C. Jeffery Arnold, Judge. Counsel: Bob Shea, Winter Park. Robert Oxendine, Tampa.
FINAL JUDGMENT AWARDING PLAINTIFF/APPELLEE ATTORNEY FEES, AND INTEREST PURSUANT TO THE CIRCUIT COURT’S ORDERS OF APRIL 23, 2004 AND OF JUNE 28, 2004 AND F.S. §57.115
THIS MATTER having come before the Court on Plaintiff/Appellee’s (hereafter “Plaintiff”) Third Amended Motion to Tax Attorney’s Fees and Taxable Costs, with the Court having heard argument of counsel, considered the expert testimony which was provided by both parties, reviewed the Court file, and being otherwise fully advised in the premises thereof, the Court finds as follows:
1. The Court has considered all of the factors/criteria set forth Florida Patient’s Compensation Fund v. Rowe, 472 So.2d. 1145 (Fla. 1985) and Standard Guarantee Insurance Company v. Quanstrom, 555 So.2d 828 (Fla. 1990). The court also considered the criteria for the awarding of fees and costs set forth in Fla. R. Civ. Pro. 1.389, 1.390, and/or F.S. sections 627.428, 57.105(3) & 57.115.
2. The application of a multiplier to enhance attorney fees, earned on appeal, is proper pursuant to Stack v. Lewis, 641 So. 2d 969 (Fla. 1st DCA, 1994). Like Stack the Plaintiff employed the same attorney from the beginning of the litigation through the appeal. Both the trial and appellate work are governed by a contingency fee agreement, which was previously submitted to the court. At the time litigation commenced, the trial court found the probability of success was less than 50/50. The Trial Court believes that the chance of prevailing, on appeal, was excellent. Under such thoughts, the Plaintiff would not be entitled to any multiplier for the appellate work. Stack;however, requires this Court to apply the same multiplier as was applied for the trial related work.
It is therefore, ORDERED AND ADJUDGED that:
3. The Court awards a multiplier of 2.4 regarding the time the Plaintiff’s counsel spent in the defense of the Defendant/Appellant’s (hereafter “Defendant”) appeals to the Circuit Court.
4. A reasonable hourly rate to be paid by the Defendant to Plaintiff’s counsel, and as stipulated to by the Defendant, is $300.00 per hour. This stipulation is approved by the Court and is consistent with previous awards by the Court.
5. (a) A reasonable number of hours expended by Plaintiff’s counsel in the defense of the Defendant’s appeals (for which the Appellate Court has granted the Plaintiff attorney’s fees), and for which a multiplier is to be applied, was 197.1 hours.
(b) Applying the aforesaid multiplier to the number of hours expended times the hourly rate, the Court awards to Plaintiff’s counsel the amount of $141,912.00.
6. A reasonable number of hours expended by Plaintiff’s counsel in post Final Judgment work or collection of previous awards of this Court is 8.9 hours and a reasonable fee is $300.00 per hour. The Court finds that the chances of collecting a Final Judgment against Defendant is excellent. A multiplier is not to be applied to this award. The Defendant shall pay the Plaintiff’s attorney the sum of $2,670.00.
7. The TOTAL ATTORNEY FEE awarded to Plaintiff’s attorney, under paragraphs 5 and 6 is $144,582.00.
8. On December 17, 2001, the Trial Court awarded, a “Final Judgment Awarding Plaintiff’s Attorney’s Fees and Costs,” in the amount of $132,746.49, which would bear interest at the rate of 11% per annum. The Final Judgment remained “unpaid” during the pendency of the Defendant’s appeals. After the Circuit Court affirmed the Trial Court’s Orders, on July 7, 2004, the Defendant presented a check to the Plaintiff in the amount of $146,559.09. This amount did not include all sums due Plaintiff’s attorney. The calculation of interest starts from the date of the Final Judgment, December 17, 2001 and continues past the date of this Order. The amount of the award at issue, i.e., $132,746.49 is multiplied by 11% per annum and provides $14,602.11 in interest per year. On July 7, 2004, Defendant owed $132,746.49, plus interest from December 17, 2001 through July 7, 2004 in the amount of $37,365.40 for a total of $170,111.89. Of this sum, Defendant paid $146,599.09. Interest is paid first, then reduction of principal. Paying interest first and then reducing the principal left a balance owing of $23,552.80. This unpaid sum continues to bear interest at 11% from July 8, 2004 through December 1, 2004. The unpaid interest is $1,043.42. The Defendant shall pay the Plaintiff’s attorneys the amount of $1,043.42 in unpaid interest through December 1, 2004 and at the rate of $7.098104 per day thereafter until paid in full.
9. EXPERT WITNESS FEE AS COSTS. The Court awards 10 hours at $300.00 per hour, as expert fees to Kevin Weiss, Esquire, as taxable costs. Defendant shall pay $3,000.00 for such fees to plaintiff’s attorney.
10. The Court awards the Plaintiff’s attorneys interest an reasonable appellate attorney’s fees and taxable costs described in paragraphs 7 and 9, from April 23, 2004, to December 1, 2004, in the amount of $6,783.35.
11.(a) It is thereupon adjudged that the Law Firm of McKeever, Albert & Barth, 807 West Morse Boulevard, Suite 200, Winter Park, Florida 32789 shall recover reasonable attorneys fees described in paragraph 7, expert witness fees as a taxable cost in paragraph 9 and interest thereon as provided in paragraph 10 from the Defendant/Appellant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, 7401 Cypress Grand Boulevard, Winter Haven, Florida 33883-9608 the sum of $154,365.35 that shall bear interest at the rate of 7% per annum from the date of this Order, until paid in full. For all said sums let execution issue.
11(b). In addition to the sums described in paragraph 11(a) above, Defendant would owe lawful interest on the December 17, 2001 Final Judgment, until paid in full, at the rate of 11% per annum. Plaintiff’s attorneys are entitled to execute on such unpaid principal and interest under the terms of the December 17, 2001 Final Judgment.
12. The Court reserves jurisdiction over the parties and the subject matter of this action for the purpose of enforcing this and previous Final Judgments entered by this Court.
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