12 Fla. L. Weekly Supp. 401b

Attorney’s fees — Insurance — Personal injury protection — Contingency risk multiplier — Where counsel undertook representation of medical provider pursuant to pure contingency fee agreement, market in jurisdiction requires contingency risk multiplier to obtain competent counsel in like cases, and provider’s chances of success at outset of case were unlikely, multiplier of 2.0 is appropriate — Expert witness fees, costs, and prejudgment interest awarded

PREZIOSI WEST/EAST ORLANDO CHIROPRACTIC CLINIC, P.A., as assignee of Ivis Marquez, Plaintiff, vs. DIRECT GENERAL INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 03-SC-3693. January 7, 2005. John Sloop, Judge. Counsel: Michael Tierney, Winter Park. Louis D. Kaye, Allen, Kopet & Associates, PLLC., Orlando. Kevin Weiss, Weiss Legal Group P.A., Maitland.

FINAL JUDGMENT AWARDING ATTORNEYS’ FEES AND COSTS

THIS CAUSE came to be heard on 1/4/2005, upon the Plaintiff’s Motion to Tax Attorneys’ Fees and Costs Pursuant to Section 627.428, Florida Statutes, and the Court having heard testimony, argument and examined the Court file, the Court makes the following findings:

1. This case involved a claim for PIP benefits arising out of an automobile accident of March 3, 2002. The insured, Ivis Marquez, was alleged to have sustained injuries arising out of the accident, and sought treatment from the Plaintiff. The insured assigned their PIP insurance benefits to the Plaintiff. The Plaintiff billed the Defendant for medical treatment rendered. The Defendant did not pay the bill, and denied the claim. Thereafter, Plaintiff filed this suit alleging that the Defendant improperly refused to pay its billing, and sought to recover the amounts due, together with interest. Following the filing of suit and discovery, the Defendant agreed to pay the benefits due, together with interest. The Defendant has stipulated that the Plaintiff is entitled to the award of its reasonable attorneys’ fees and costs, but has denied that the Plaintiff is entitled to a multiplier.

2. The Court has based its decision on and applied the factors contained in Standard Guaranty Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990); Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985); and Bell v. U.S.B. Acquisition Company, Inc., 734 So.2d 403 (Fla. 1999).

3. NUMBER OF HOURS: The court finds that the Plaintiff’s counsel, Michael Tierney, Esquire, reasonably expended 37.6 hours in representing the Plaintiff in this cause.

4. HOURLY RATE: The Court finds a reasonable hourly rate for Michael Tierney in this case is $250.00.

5. CONTINGENCY RISK FACTOR: The Court has considered all of the factors and criteria set forth in Standard Guaranty Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990); Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985); and Bell v. U.S.B. Acquisition Company, Inc., 734 So.2d 403 (Fla. 1999), and evidence adduced thereon, as they relate to the application of a contingency risk multiplier to the Plaintiff’s attorneys’ fees in this case. The Court specifically finds that:

a. Plaintiff’s counsel undertook the representation of the Plaintiff pursuant to a pure contingency fee agreement as defined in State Farm v. Palma, 555 So.2d 836 (Fla. 1990).

b. the market in this jurisdiction requires a contingency risk multiplier to obtain competent counsel in cases like the instant case;

c. taking into consideration the evidence, as well as the above law, the Court finds that the Plaintiff’s chances of success at the outset or onset of this case were:

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

___ approximately even (x1.5-2.0)

/s/ unlikely (x2.0-2.5)

Accordingly, a contingency risk multiplier of 2.0 is appropriate and applicable.

6. That based upon this Court’s determination, the total attorneys’ fees that the Plaintiff is entitled to recover from the Defendant for the services of its attorney, before this Court is 37.6 hours x $250.00 (hourly rate) x 2.0 = $18,800.00.

7. The Court finds / the parties stipulate (circle one) that the Plaintiff’s counsel, Michael Tierney, incurred reasonable costs in the amount of $99.50 during his representation of the Plaintiff in this case.

8. Prejudgment interest is due to Plaintiff’s counsel on the attorneys’ fees and costs from 25 October ’04, (the date of settlement of the underlying claim), until the entry of this final judgment. Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So.2d 929 (Fla. 1996); and Boulis v. Florida Department of Transportation, 733 So.2d 959 (Fla. 1999).

9. Plaintiff’s expert witness on attorneys’ fees, Kevin Weiss, Esquire, is entitled to be compensated for the time expended in preparing to testify and testifying in this case. Mr. Weiss reasonably expended 3.0 hours in this case, and a reasonable hourly rate for Mr. Weiss is $350.00 per hour, for a total expert fee of $1,050.00. See Travieso v. Travieso, 474 So.2d 1184 (Fla. 1985); Stokus v. Phillips, 651 So.2d 1244 (Fla. 2d DCA 1995); and, Mangel v. Bob Dance Dodge, Inc., 739 So.2d 720 (Fla. 5th DCA 1999).

WHEREFORE, it is hereby ORDERED AND ADJUDGED:

1. That Plaintiff’s Motion to Tax Attorneys’ Fees and Costs of Michael Tierney, Esquire is hereby GRANTED.

2. That Plaintiff’s counsel, Michael Tierney, Esquire shall have and recover from the Defendant a reasonable attorneys’ fee in the amount of $18,800.00, costs in the amount of $99.50 and prejudgment interest on both the attorneys’ fee and costs at the rate of seven percent (7%) per annum from 25 Oct 04, through 7 Jan 05, in the amount of $268.22, for the total sum of $19,167.72, that shall bear interest at the rate of seven percent (7%) per annum until payment in full of the judgment, for which let execution issue forthwith.

3. Plaintiff’s expert witness on attorney’s fees, Kevin Weiss, Esquire, shall have and recover from the Defendant fees in the amount of $1,050.00 for expert time expended in this case, for which let execution issue forthwith.

4. Plaintiff shall take from Defendant the TOTAL SUM of $20,217.72 as attorney’s fees and costs for prosecution of this claim for which let the execution issue forthwith.

Attorney’s Fees $18,800.00

Costs $ 99.50

Interest on attorney’s fees and costs $ 268.22

Expert Witness Fees $ 1,050.00

TOTAL SUM $ 20,217.72

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