12 Fla. L. Weekly Supp. 572a
Attorney’s fees — Insurance — Personal injury protection — Contingency risk multiplier — Where medical provider’s attorney undertook representation on pure contingency fee basis, market requires contingency risk multiplier to obtain competent counsel in like cases, and provider’s chances of success at outset were approximately even, multiplier of 1.75 is applicable — Costs, expert witness fees and prejudgment interest awarded
STAND-UP MRI OF ORLANDO as assignee of CATHERINE BAKER, Plaintiff, v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. CCO-03-10668. March 16, 2005. Nancy L. Clarke, Judge. Counsel: F. Paul Tipton, Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando. Dawn M. Ikerd, Orlando.
FINAL JUDGMENT AWARDING ATTORNEY’S FEES AND COSTS
THIS CAUSE came on to be heard on March 2, 2005, upon Plaintiff’s Motion to Tax Attorney’s Fees and Costs pursuant to Florida Statutes §627.428, and the Court having heard testimony and argument, having examined the Court file, and having received other evidence, the Court makes the following findings:
1. This case involved a PIP claim arising out of an automobile accident which occurred on May 22, 2002 involving the insured Catherine Baker. The Plaintiff herein performed an MRI on the insured on July 11, 2002. The Defendant denied the bill based upon a report from a Randolph Harding, DC who opined on September 9, 2002, that the MRI was not “reasonable, medically necessary or related” to the motor vehicle collision. Subsequent to the filing of the lawsuit, benefits exhausted. The parties later agreed to settle the underlying claim for benefits for $500, plus interest of $105.78 at a mediation.
2. The Defendant further stipulated that Plaintiff was entitled to a reasonable attorney’s fee and taxable costs at the time of the November 15, 2004 mediation.
3. The Court has considered all of the factors or criteria set forth in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), Standard Guaranty Insurance Company v. Quanstrom, 555 So.2d 828 (Fla. 1990), and Bell v. U.S.B. Acquisition Company, Inc., 734 So.2d 403 (Fla. 1999).
4. Plaintiff’s counsel, Dawn M. Ikerd, Esquire, of Ikerd & Ikerd, P.A., reasonably expended 39 hours in representing the Plaintiff in this cause.
5. In determining the hourly rate for the Plaintiff’s attorney’s fees in this cause, the Court has considered the criteria set forth in the authority as set forth above including the skill requisite to perform legal services properly, the market rate for the hourly fees charged in the instant area by lawyers of reasonably comparable skill, experience, and reputation performing similar services, and the experience, reputation, diligence and ability of Plaintiff’s counsel and the skill, expertise, or efficiency of effort related in actually performing the services. Based upon the testimony before the court, including the testimony of the experts, and based upon this Court’s knowledge of other comparable attorneys in this locale, the Court finds that a reasonable hourly rate for Dawn Ikerd, Esquire in this case is $340.00.
6. The Court has considered all of the factors or criteria set forth in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), Standard Guaranty Insurance Company v. Quanstrom, 555 So.2d 828 (Fla. 1990), and Bell v. U.S.B. Acquisition Company, Inc., 734 So.2d 403 (Fla. 1999), as they relate to the application of a contingency risk multiplier. The Court finds that 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), that the market in this jurisdiction requires a contingency risk multiplier to obtain competent counsel in cases such as the case sub judice.
7. That 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:
_____ less than even (x 2.0-2.5)
x approximately even (x 1.5-2.0)
_____ more likely than not (x 1.0-1.5)
Accordingly, a contingency risk multiple of 1.75 is applicable.
8. Based upon this Court’s determination, the total attorney’s fees that the Plaintiff is entitled to recover from the Defendant for the services of its attorney, Dawn M. Ikerd, Esquire before this Court is 39 hours x $340.00 x 1.75, for a total of $23,205.00.
9. Plaintiff’s counsel, Dawn M. Ikerd, Esquire incurred reasonable costs in the amount of $1,308.40 during her representation of the Plaintiff in this case, which has not been objected to by the Defendant.
10. That prejudgment interest is due to Plaintiff’s counsel on the attorney’s fees and costs from December 17, 2004, the date the Plaintiff received the settlement check until the entry of this final judgement pursuant to Quality Engineering, Inc. v. Higley South, Inc., 670 So.2d 929 (Fla. 1996); and Boulis v. Florida Department of Transportation, 733 So.2d 959 (Fla. 1999).
11. The Court considered the testimony of Plaintiff’s expert fee witness, Kevin Weiss, Esquire and determines that he is entitled to be compensated for the time expended in preparing to testify and in testifying in this matter. Mr. Weiss reasonably expended 5.5 in this case, and a reasonable hourly rate for his services is $350.00. Accordingly, Plaintiff is entitled to an additional expert witness cost award in the total amount of $1925.00. Mangel v. Bob Dance Dodge, Inc., 739 So.2d 720 (Fla. 5th DCA 1999); Travieso v. Travieso, 747 So.2d 1184 (Fla. 1985); and Stokus v. Phillips, 651 So.2d 1244 (Fla. 2d DCA 1995).
WHEREFORE, it is hereby ORDERED and ADJUDGED:
1. That Plaintiff’s Motion to Tax Attorney’s Fees and Costs is hereby GRANTED.
2. That Plaintiff’s counsel, Dawn M. Ikerd, Esquire shall have and recover from the Defendant, METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, a reasonable attorney’s fee in the amount of $23,205.00, costs in the amount of $1,308.40, and prejudgment interest of both the attorney’s fees and costs at a rate of 7% per annum from December 17, 2004 to March 16, 2005, in the amount of $427.80, for a total sum of $24,941.20, that shall bear interest at the rate of 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, METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, fees in the amount of $1925.00, for expert time expended in this case, for which let execution issue forthwith.
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