12 Fla. L. Weekly Supp. 95b
Attorney’s fees — Insurance — Personal injury protection — Appellate fees — Contingency risk multiplier — Where medical provider’s counsel was employed on pure contingency basis, relevant market required multiplier to obtain competent counsel, provider’s counsel was not able to mitigate risk of nonpayment in any way, first appellate case on lack of countersignature involved novel issue of first impression and high level of skill and competence to prevail, provider substantially prevailed on all claims at all levels, and provider’s chance of success at outset was 50% or less, multiplier of 2.0 is applicable — Expert witness fee, costs, and prejudgment interest awarded
TOTAL HEALTH CARE OF FLORIDA, INC. (OSCAR BLAS), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 00-8661 CC 25(1). April 12, 2004. Wendell M. Graham, Judge. Counsel: Virginia Best. Kevin W. Whitehead, Downs, Brill, Whitehead, P.A. Mark Gatica.
ORDER AND FINAL JUDGMENT FOR 11th CIRCUIT APPELLATE ATTORNEY’S FEES AND COSTS
THIS CAUSE having come to be heard on 04/08/04 and continued to 4/12/04, on Plaintiff’s, TOTAL HEALTH CARE OF FLORIDA, INC. (OSCAR BLAS), Motion to Determine Amount of 11th Circuit Appellate Attorney’s Fees and Costs, the Court having heard argument of counsel, the evidence presented at the hearing, testimony from expert witnesses, and having been otherwise fully advised in the premises, the Court makes the following:
It is therefore ORDERED AND ADJUDGED:
1. This Court finds that Downs & Associates, P.A., Kevin W. Whitehead, Esq., Lopez and Best, and Virginia Best, 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, and the Third DCA’s Denial of Petitioner’s Writ. of Cert. and Amended Writ. of Cert., Order awarding attorney’s fees, and this Court’s Final Judgment entered in favor of the Plaintiff.
2. This Court has considered all of the factors enumerated in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), Rule 4-1.5, Rules Regulating the Florida Bar. Specifically, This Court finds that Kevin W. Whitehead, Esq. and Virginia Best, Esq. reasonably expended 125 hours in the 11th Circuit Appeal for the subject (PIP) lawsuit. This finding is based upon the Affidavit with attached time sheets filed by Kevin W. Whitehead, Esq., and Virginia Best, Esq., with this Court and the testimony from 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 the Rule 4-1.5, Rules Regulating the Florida Bar, this Court finds that Kevin W. Whitehead, Esq. and Virginia Best, Esq., are entitled to be compensated at the rate of $325.00 per hour for their time. This is a blended rated. 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. and Virginia Best, Esq. along with all other factors outlined in Rowe and argued by the fee experts.
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., and Virginia Best, Esq. 125 multiplied by the reasonable hourly rate of $325.00 per hour for Kevin W. Whitehead, Esq. and Virginia Best, Esq., is $40,625.00 in this case.
5. This Court finds that pursuant to Plaintiff’s Contingency Fee Retainer agreement between Plaintiffs and their counsel, Kevin W. Whitehead, Esq. and Virginia Best, 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.” The Court finds that for this case, the relevant market did require a contingency fee multiplier to obtain competent counsel, and that counsel for Plaintiff was not able to mitigate the risk of nonpayment of a fee in any way. This Court specifically finds that the Plaintiff in this case would have had a difficult time obtaining competent counsel if not for the potential application of a contingency risk factor multiplier.
7. 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, and the amount of the fee was not to be determined by the amount of the recovery.
8. This Court finds that at the outset of the case, the law regarding lack of countersignature was unsettled at the appellate level. The Defendant raised this defense in its Answer and Affirmative Defenses and filed a Motion for Summary Judgment in this case. The Court had granted this motion for summary judgment for the Defendant, which was appealed by the Plaintiff in this case, and subsequently this Court was reversed. This appeal was the first countersignature appellate decision in the 11th Judicial Circuit and the State of Florida on this issue. The Defendant filed a Writ. of Cert. Petition, Amended Writ. of Cert. Petition, and Motion for Recall, which was denied by the Third DCA, and the Third DCA instructed this Court to award prevailing party attorney’s fees to the Plaintiff accordingly. The Defendant choose to go “toe to toe” with the Plaintiff and litigate this case to the “bitter end” in an effort to make appellate law on the issue of lack of countersignature. This case involved a novel issue of first impression and a high level of skill and competence on behalf of the Plaintiff’s attorneys in order to prevail.
9. This Court finds that the Plaintiff substantially prevailed on all claims and/or issues in this case at all levels, including the 11th Circuit Court appellate court.
10. Consequently, pursuant to the foregoing cited authorities, this Court finds that a multiplier is applicable in this case. This Court hereby determines sitting in its factual finding capacity, based upon its consideration of the facts set forth above, that the Plaintiff at the outset of this matter had at best, a 50% chance of success or less. This Court determines that the “lodestar” fee amount in this case of $40,625.00 is entitled to enhancement by a contingency risk factor multiplier of 2.0 based upon the factors enumerated above and argued at the hearing for a total fee award of $81,250.00.
11. This Court has considered Florida Statute, §92.231 and Stokus v. Phillips, 651 So.2d 1244 (Fla. 2d DCA 1995). The Court finds that Plaintiff’s expert witness, Roy Wasson, 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 in addition to the amount previously awarded to Mr. Wasson is 4.75 hours and that a reasonable expert witness fee is $425.00 per hour. Consequently, Roy Wasson, Esq. is entitled to be compensated for his expert witness services rendered in this matter in the amount of $2,018.75, which is a taxable cost awarded to the Plaintiff.
12. This Court finds that Plaintiff’s counsel was entitled to an attorney’s fee award from it on 9/26/02, the date of the Order Denying the Motion for Rehearing. Consequently, pursuant to Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So.2d 929 (Fla. 1996), Plaintiff’s counsel is entitled to collect interest per annum on the fee award. The interest award is calculated from September 26, 2002, through December 31, 2002, at the rate of 9% for an award of $1,945.99; from January 1, 2003, through December 31, 2003, at the rate of 7%, for an award of 5,874.00; and, from January 1, 2004, through April 12, 2004, at the rate of 6%, for an award of 1,373.70, all for a total interest award of $9,193.69.
13. This Court finds that Plaintiff’s counsel is entitled to taxable costs in the amount of $127.00, which is separate from the expert witness fee for this hearing.
14. A total judgement amount of attorney fees, prejudgement interest on attorney’s fees and taxable costs in the amount of $92,589.44 , is hereby entered in favor of Kevin W. Whitehead, Esq. of Downs & Associates, P.A., and Virginia Best, Esq, of Lopez & Best, against United Automobile Insurance Company, for which let execution issue, and upon which post judgement interest at the rate of 7% shall accrue from this day until paid. The check shall be made payable to Downs & Associates, Trust Account.
15. This Court reserves jurisdiction to enforce this Final Judgment, as well as any previous Judgements and/or Orders in this matter, and to do any and all other acts necessary in this cause.
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