13 Fla. L. Weekly Supp. 357b

Attorney’s fees — Insurance — Personal injury protection — Contingency risk multiplier — Where medical provider’s counsel undertook representation pursuant to pure contingency fee agreement, market in jurisdiction requires contingency risk multiplier to obtain competent counsel in such cases, and provider’s chances of success at outset of case were more likely than not, contingency risk multiplier of 1.0 is appropriate — Expert witness fee, costs and prejudgment interest awarded

FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, MD. PA., as assignee of James Mullins, Plaintiff, vs. NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 04-SC-4735. January 27, 2006. Harry Stein, Senior Judge. Counsel: Richard Oliver Hale, IV, Orlando. R. Scott Simmons, Law Offices of Douglas E. Polk, Jr., Lake Mary.

FINAL JUDGMENT AWARDING ATTORNEYS’ FEES AND COSTS

THIS CAUSE came to be heard on January 27, 2006, 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:

This case involved a claim for PIP benefits arising out of an automobile accident of 12/08/2003. The insured, James Mullins, was alleged to have sustained injuries arising out of the accident, and sought treatment from the Plaintiff, FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, M.D., P.A., as assignee of James Mullins. The insured assigned his PIP insurance benefits to the Plaintiff. The Plaintiff billed the Defendant, NATIONWIDE MUTUAL INSURANCE COMPANY, for medical treatment rendered. The Defendant did not pay the bill, alleging the patient’s personal injury protection benefits were exhausted. Thereafter, Plaintiff filed this suit alleging that the Defendant improperly denied its medical billings, seeking to recover the amounts due, together with interest. Following the filing of suit and substantial discovery, the Defendant agreed to pay the benefits due, together with interest. The Defendant stipulated that the Plaintiff is entitled to the award of its reasonable attorneys’ fees and costs.

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, Richard Oliver Hale, IV, Esquire, reasonably expended 51.4 hours in representing the Plaintiff in this cause and the parties have agreed that Plaintiff’s counsel Rutledge M. Bradford reasonably expended five (5) hours in representing the Plaintiff.

4. HOURLY RATE: The Court finds a reasonable hourly rate for Richard Oliver Hale, IV in this case is $200.00 per hour, and the parties agree that a reasonable hourly rate for Rutledge M. Bradford is Three Hundred fifty and 00/100 Dollars ($350.00), per hour.

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:

1.0 more likely than not (x1.0-1.5)

approximately even (x1.5-2.0)

unlikely (x 2.0-2.5)

Accordingly, a contingency risk multiplier of 1.0 is appropriate and applicable.

6. Plaintiff’s expert witness on attorneys’ fees, Brain K. McClain, Esquire, is entitled to be compensated for the time expended in preparing to testify and testifying in this case. Mr. McClain reasonably expended 10 hours in this case, and a reasonable hourly rate for Mr. McClain is $300.00 an per hour, for a total expert fee of $3,000.00. 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).

7. 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, Richard Oliver Hale, IV, is 51.4 hours x $200.00 (hourly rate) for a total of $10,280.00 and for the services of its attorney, Rutledge M. Bradford, is five (5) hours x $350.00 (hourly rate) for a total of $1,750.00.

8. The Court finds that the Plaintiff’s counsel, Richard Oliver Hale, IV, incurred reasonable costs in the amount of $722.00 during his representation of the Plaintiff in this case.

9. That prejudgment interest is due to Plaintiff’s counsel on the attorneys’ fees and costs from October 28, 2005, 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).

WHEREFORE, it is hereby ORDERED AND ADJUDGED:

1. That Plaintiff’s Motion to Tax Attorneys’ Fees and Costs of Richard Oliver Hale, IV, and Rutledge M. Bradford, Esquire is hereby GRANTED.

2. That Plaintiff’s counsel, Richard Oliver Hale, IV, Esquire and Rutledge M. Bradford shall have and recover from the Defendant, NATIONWIDE MUTUAL INSURANCE COMPANY, the TOTAL SUM of $12,752.00 as attorney’s fees and costs for prosecution of this claim for which let execution issue forthwith.

3. Plaintiff’s expert witness on attorney’s fees, Brian K. McClain, Esquire, shall have and recover from the Defendant, NATIONWIDE MUTUAL INSURANCE COMPANY, fees in the amount of $3,000.00 for expert time expended in this case, for which let execution issue forthwith.

Attorney’s Fees $12,030.00

Costs $722.00

Interest on attorney’s fees $240.24

Expert Witness Fee $3000.00

TOTAL SUM* $15,992.24

* Post-judgment interest shall be due on this judgment pursuant to F.S. Section 55.03.

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