13 Fla. L. Weekly Supp. 400c
Attorney’s fees — Insurance — Personal injury protection — Justiciable issues — Where attorney for medical provider engaged in bad faith handling of suit, provider’s attorney will bear all liability for insurer’s attorney’s fees and costs, except that provider will pay attorney’s fees for one hour of each of two depositions, one hour of mediation, deposition costs and half of expert witness fee
DOUGLAS PRICE, D.C., P.A. d/b/a FLORIDA PAIN TRAUMA & INJURY CENTER, Plaintiff, vs. STATE FARM FIRE AND CASUALTY COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 03-14968-CC, Division J. December 9, 2005. Gaston J. Fernandez, Judge. Counsel: Michael C. Addison, for Plaintiff. Gale L. Young, Gale L. Young, P.A., Tampa, for Defendant.
FINAL JUDGMENT AWARDING ATTORNEY’S FEES AND COSTS TO BE PAID TO DEFENDANT
THIS CAUSE, having come on before this Court on December 1, 2004, for a Fee Hearing, the Court previously finding Defendant’s entitlement to attorney’s fees and costs pursuant to the Court’s order of May 28, 2004, [11 Fla. L. Weekly Supp. 740a] and §57.105, F.S., the Court having reserved jurisdiction as to the amount of fees and costs to be awarded to Defendant, and the court having heard additional argument on July 15, 2005, and being otherwise duly advised in the premises, the Court hereby enters Final Judgment against Plaintiff, and Michele Muir, Esquire and the firm of Kane & Kane, as former counsel for Plaintiff and further finds as follows:
1. On May 28, 2004, the Court entered its Order granting Defendant’s Motion to Determine Entitlement to Attorney’s Fees and Costs and Request for Sanctions pursuant to §57.105, F.S.
2. The Court found Plaintiff, and Plaintiff’s counsel, each 50% liable for the payment of Defendant’s attorney’s fees and costs and retained jurisdiction to determine the amount of attorney’s fees and costs to be awarded to Defendant.
3. On December 1, 2004, the Court held a fee hearing to determine the amount of fees and costs to be awarded since the parties could not agree. No one appeared on behalf of the firm of Kane and Kane.
4. Dr. Douglas Price testified at the fee hearing, over defense counsel’s objection, in support of his argument that he should not be held liable for 50% of the attorneys fees and costs. Dr. Price did not attend the hearing on Defendant’s Motion to Determine Entitlement to Attorney’s Fees and Costs and Request for Sanctions on May 20, 2004, nor did he object to the Court’s May 28, 2004 Order, granting entitlement and ordering that Plaintiff and his counsel were each 50% liable for the fees and costs to be awarded to Defendant.
5. Based on Dr. Price’s testimony at the December 1, 2004 fee hearing, the Court, sua sponte, vacated its May 28, 2004 Order granting entitlement, and instead, expressly found that Michele Muir, Esquire and the firm of Kane & Kane, engaged in bad faith in the handling of this lawsuit, and therefore, would bear 100% of the liability for Defendant’s attorney’s fees and costs, except that Douglas Price, D.C. shall bear the cost of attorney’s fees for one hour for each of the two scheduled depositions, one hour for the fee mediation, the costs associated with the depositions, and one-half of Defendant’s expert witness fee.
6. Counsel for Dr. Price stipulated, and the Court so finds, that the hourly rates of $125.00 per hour for attorney time, and $70.00 per hour for legal assistant time, are reasonable hourly rates for the tasks performed by attorneys for Defendant, and the legal assistants, respectively.
7. Based on the Affidavits in the record of Gale L. Young, Esquire and William Smith addressing the fees and costs, the testimony introduced by Gale L. Young, Esquire at the hearing on December 1, 2004, and the testimony of Defendant’s expert witness, Jeffrey Caglianone, Esquire, the Court makes the following findings of fact:
a. The Court finds that the 61.0 hours were reasonably expended by attorneys at the law firm of Gale L. Young, P.A. in defense of this action, at the rate of $125.00 per hour, for a total of $7,625.00.
b. The Court finds that 8.0 hours were reasonably expended by legal assistants at the law firm of Gale L. Young, P.A. in defense of this action, at the rate of $70.00 per hour, for a total of $560.00.
c. The Court finds that Jeffrey Caglianone, Esquire reasonably expended three hours in preparing for and attending the fee hearing as Defendant’s expert witness, at the reasonable rate of $250.00 per hour, for a total of $750.00. The expense of this fee shall be shared equally between Plaintiff, and the firm of Kane and Kane, counsel for Plaintiff.
d. The Court finds that Defendant reasonably expended $519.42 in costs in defense of this matter and awards $398.42 of that amount to be paid by Michele Muir and the firm of Kane and Kane, prior counsel for Plaintiff, and $121.00 is to be paid by Plaintiff.
e. In addition to the hours delineated in paragraph 7. a. above, the Court finds that 3.0 hours were reasonably expended by attorneys at the law firm of Gale L. Young, P.A., at the reasonable rate of $125.00, in attending two scheduled depositions of Dr. Price and the fee mediation, at a total fee of $375.00 to be paid by Plaintiff.
WHEREFORE, IT IS ORDERED AND ADJUDGED that pursuant to §57.105, F.S., Final Judgment is entered in favor of Defendant, State Farm Fire and Casualty Company, whose address is 14055 River Edge Drive, Suite 500, Tampa, Florida 33637, as follows:
1. Plaintiff, Douglas Price, D.C., P.A. shall pay to Defendant, no later than July 25, 2005, the total amount of $871.00, delineated as follows:
a. Reasonable attorney’s fees in the amount of $375.00.
b. Reasonable expert witness fee in the amount of $375.00.
c. Reasonable costs in the amount of $121.00.
2. Michele Muir, Esquire and the firm of Kane and Kane, shall pay to Defendant the total amount of $8,958.42, delineated as follows:
a. Reasonable attorneys fees in the amount of $7,625.00;
b. Reasonable legal assistant/paralegal fees in the amount of $560.00;
c. Reasonable expert witness fees in the amount of $375.00;
d. Reasonable costs in the amount of $398.42.
3. Each amount owed to Defendant shall bear interest at the legal rate of 7% per annum, or .0001918 per day, accruing from December 1, 2004 until paid in full.
4. The court retains jurisdiction to enforce this Final Judgment.
FOR WHICH LET EXECUTION ISSUE FORTHWITH.
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ORDER ON DEFENDANT’S MOTION TO CONTINUE THE FEE HEARING HELD ON DECEMBER 1, 2004, OR IN THE ALTERNATIVE, MOTION FOR REHEARING ON DECEMBER 1, 2004 FEE HEARING, AND MOTION FOR CONTEMPT
THIS CAUSE, having come on before this Court on July 15, 2005, upon the Defendant’s Motion to Continue the Fee Hearing held on December 1, 2004, or in the Alternative, Motion for Rehearing on December 1, 2004 Fee Hearing, and Motion for Contempt, and the Court having heard argument of counsel for the respective parties, and being otherwise duly advised in the premises, it is hereby
ORDERED AND ADJUDGED that:
Defendant’s Motion to Continue the Fee Hearing is denied. However, the Court treats Defendant’s Motion as a Motion for Clarification and further clarifies its ruling, finding that Michelle Muir, Esquire and the law firm of Kane and Kane, former counsel for Plaintiff, are liable for 100% of the attorney’s fees costs, and expert witness fees at issue in this matter because of their bad faith in the handling of this lawsuit, except that Douglas Price, D.C. shall bear the cost of attorney’s fees for one hour for each of the two scheduled depositions, one hour for the fee mediation, the costs associated with the depositions, and one-half of Defendant’s expert witness fee, in the amounts as set forth in the Final Judgment Awarding Attorney’s Fees and Costs to Be Paid to Defendant.
Defendant’s Motion for Contempt is denied, however, Plaintiff shall pay to Defendant $871.00 no later than July 25, 2005.
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