12 Fla. L. Weekly Supp. 502a
Attorney’s fees — Insurance — Personal injury protection — Contingency risk multiplier — Where relevant market requires application of contingency risk multiplier in order for medical provider to obtain competent counsel, amount in controversy was relatively small, results obtained were excellent, contingency fee contract was pure contingency fee agreement, provider’s counsel had no ability to mitigate potential loss, and chance of success at outset of case was less than 50%, multiplier of 2.0 is appropriate — Costs, expert witness fee, and prejudgment interest awarded — Amount — Hours expended — Time spent litigating amount of fees — Request for additional fees for time expended after underlying issues were resolved, in activities associated with obtaining judgment for reasonable attorney’s fees and costs, is denied
WYNNE CHIROPRACTIC, INC., as assignee of VERONICA LABARR, Plaintiff, vs. PROGRESSIVE AUTO PRO INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 02-SC-002318. February 3, 2005. John R. Sloop, Judge. Counsel: Brian A. Coury, The Coury Law Firm, P.A., Lake Mary. Rosemary Scher, Kubicki Draper, Orlando.
FINAL JUDGMENT AWARDING ATTORNEY’S FEES AND COSTS TO PLAINTIFF
THIS CAUSE came on to be heard January 10, 2005 on the Plaintiff’s Motion to Tax Attorney’s Fees and Costs with Interest. The Court has reviewed the file, received expert witness testimony from Kevin Weiss, Esq. for the Plaintiff, and Timothy DePalma, Esq. for the Defendant, has heard Mr. Coury testify, and has heard argument presented by both parties, and has examined the relevant evidence in this case. Accordingly, the Court makes the following findings of fact:
1. The Plaintiff’s counsel is entitled to fees and costs according to Florida law and as stipulated by the parties.
2. Plaintiff’s counsel, The Coury Law Firm, P.A., reasonably expended 112.60 hours in representing the Plaintiff in this cause.
3. A reasonable hourly rate to be paid by the Defendant to Plaintiff’s counsel for this type of Personal Injury Protection litigation is hereby determined to be $350.00 per hour for any time expended by Brian A. Coury, Esq., based upon his experience, diligence, ability, and reputation in the community. He acted as the senior attorney on this file and has been practicing law 1991 and has extensive experience handling both the defense and prosecution of these types of cases. With respect to his associates, the Court finds $275.00 per hour as reasonable for any time expended by his associate(s) under his direct supervision based upon their experience level, diligence, abilities, and reputations in the community. The Court notes the associate’s time was charged to the file any time both Mr. Coury and an associate worked on a file matter simultaneously.
4. This court finds that this case is the type to which a multiplier cart be applied after having considered all of the factors and criteria set forth in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), as well as Standard Guaranty Ins. Co. v. Quanstrom, 555 So. 2d 818 (Fla. 1990). Specifically, the court finds that the relevant market for these types of PIP cases requires the application of a multiplier in order for Plaintiff to find competent counsel. Mr. Weiss testified he believed the relevant market requires the contingency fee multiplier in order to obtain competent counsel and that he would not have accepted this case without the ability to obtain a multiplier. Although Mr. DePalma testified there are several competent firms handling these types of matters, it appears to the Court the intent of the multiplier is indeed serving its purpose. Medical providers are able to secure the services of competent counsel in the community in order to pursue the recovery of relatively small amounts which are in dispute. The Court finds that this litigation presented an undesirable claim and Plaintiff could not have obtained competent counsel on a standard contingency fee unless the multiplier was used to entice Plaintiff’s counsel into taking the case. Plaintiff’s counsel faced with many obstacles at the outset of the litigation. The Defendant had denied some of the Plaintiff’s charges outright and had accused the Plaintiff of improperly coding and billing its services. For those services which were partially paid, the Defendant had indicated that the Plaintiff’s charges were higher than those customarily charged by providers in the same geographic region.
The factors set forth in Rowe have also been met. Specifically, the amount in controversy was relatively small, the results obtained were excellent for Wynne Chiropractic, Inc. Finally, the contingency fee contract utilized by Plaintiff was a pure contingency fee agreement which only allowed for attorney’s fees in the event the Plaintiff was successful with their lawsuit.
5. That taking into consideration the evidence presented regarding the risk to the Plaintiff at the outset of this case, and taking into consideration the above law and all required factors, the Court finds that a multiplier of 2.0 is appropriate as Plaintiff’s chances of success at the outset of this case was approximately less than 50%. This is because at the outset of the case, Plaintiff’s counsel was concerned the Defendant could have convinced the jury the Plaintiff’s charges were improper or excessive and/or the treatment unnecessary. Plaintiff’s counsel did not represent Veronica Labarr and had no ability to mitigate a potential loss.
6. A reasonable attorney’s fee for the Plaintiff’s attorney is therefore calculated as follows:
For time expended by Brian A. Coury, Esq, as the supervising attorney in this matter, the Court finds 15.2 hours x $350.00 an hour x 2.0 (multiplier) = $10,640.00 as reasonable and for time expended by any other associates working on the file under Mr. Coury’s direct supervision, the Court finds 97.4 hours x $275.00 an hour x 2.0 (multiplier) = $53,570.00 as reasonable. Therefore, the total attorney’s fees Plaintiff is entitled to recover from the Defendant for the services provided by Plaintiff’s counsel is calculated as $64,210.00.
7. Plaintiff’s counsel, The Coury Law Firm, P.A., incurred reasonable costs in the amount of $771.69, during the representation of the plaintiff in this case as stipulated between the parties.
8. Plaintiff is entitled to recover the expert witness fees of attorney Kevin Weiss based upon the holding and reasoning contained in the cases Stokes v. Phillips, 651 So. 2d 1244 (Fla. 2d DCA 1995), Straus v. Morton P. Plant Hospital, 478 So. 2d 472 (Fla. 2d DCA 1985), and Travieso v. Travieso, 474 So. 2d 118 (Fla. 1985), and that 6.5 is a reasonable number of hours to have been expended by Kevin Weiss, Esquire, in reviewing the Plaintiff’s file, meeting with Plaintiff’s counsel to discuss the case, preparing for the attorney fee hearing and testifying before this Court. The Court finds that a rate of $350.00 per hour is a reasonable hourly rate for the services of Mr. Weiss.
9. The Court finds that prejudgment interest is due to Plaintiff’s counsel on the amount of attorney fees at a rate of 7% from the date of the confession of judgment until the entry of this final judgment pursuant to Quality Engineering, Inc. v. Higley South, Inc., 670 So. 2d 929 (Fla. 1996) and Orlando Regional Medical Center, Inc. vs. Chmielewski, 573 So. 2d 876 (Fla. 5th DCA 1990). The prejudgment interest is calculated from April 8, 2004 and prejudgment interest is therefore calculated to be $3,706.59.
10. Plaintiff’s counsel has requested this Court exercise its discretion and consider awarding additional attorney’s fees for the 31.2 hours expended by Mr. Coury after the underlying issue resolved and after the settlement was enforced. The additional time requested involved discovery in preparation for the fee hearing, preparing for a hearing which was continued at the Defendant’s request due to Mr. Webb’s injury, attending Mediation on the issues and preparing for hearings on discovery disputes which were ultimately worked out before the hearing took place. Plaintiff’s counsel argues obtaining a Judgment in favor of the Plaintiff which can be collected enures to the benefit of the client as well as Plaintiff’s counsel and is therefore properly considered by this Court as it cannot be argued the judgment enures solely for the benefit of counsel. The Court notes the Defendant failed to tender any draft for what it considered to be reasonable attorney’s fees and costs at any time after the initial agreement to settle this matter which took place over a year ago immediately prior to the scheduled deposition of the adjuster. Accordingly, it can not be said the parties are asking this Court to resolve strictly an “amount” issue which enures solely for the benefit of Plaintiff’s counsel. This Court recognizes enforcing the purported settlement and the activities associated with obtaining a Judgment for reasonable attorneys fees as well as the taxable costs to be awarded to the Plaintiff enures to the benefit of the client as well as the attorney handling the case. However existing case law compels this Court to find Plaintiff’s attorney not entitled to these additional fees.
WHEREFORE, it is hereby ORDERED AND ADJUDGED:
1. That the Plaintiff’s Motion to Tax Attorney’s Fees and Costs is hereby GRANTED.
2. That Plaintiff’s counsel, The Coury Law Firm, P.A. does have and recovers from the Defendant, the following:
a. reasonable attorney’s fees in the amount of $64,210.00,
b. Stipulated reasonable costs in the amount of $771.69,
c. 7% interest from the confession of judgment $3,706.59,
d. reasonable expert witness fees of Kevin Weiss, Esq $2,275.00
e. reasonable attorney’s fees post settlement enuring to
the benefit of Plaintiff as well as attorneys $0.00,
f. for a Total Sum of $70,963.28,
together with post judgment interest at the rate of 7% per annum until payment in full of the judgment for which let execution issue forthwith.
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