13 Fla. L. Weekly Supp. 1242a
Attorney’s fees — Insurance — Automobile — Contingency risk multiplier — Where attorney undertook representation of insured pursuant to pure contingency fee agreement, insured did not provide evidence that he could not obtain competent counsel without application of multiplier, and market in jurisdiction does not require multiplier to obtain competent counsel in property damage benefits case undertaken in conjunction with representation of insured in other related claims, contingency risk multiplier is not appropriate or applicable — Costs, expert witness fee and prejudgment interest awarded
HEROLD AIMABLE, Plaintiff, vs. AMERICAN VEHICLE INSURANCE CO., Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 03-SC-5904. August 29, 2006. John R. Sloop, Judge. Counsel: Michael Tierney, Michael Tierney, P.A., Winter Park, for Plaintiff. Sean M. McDonough, Wilson Elser Moskowitz Edelman & Dicker LLP, Orlando, for Defendant.
FINAL JUDGMENT AWARDING ATTORNEYS’ FEES AND COSTS
THIS CAUSE came to be heard on August 28, 2006, upon the Plaintiff’s Motion to Tax Attorneys’ Fees and Costs Pursuant to §627.428, Fla. Stat., and the Court having heard testimony, argument and examined the Court file, the Court finds as follows:
1. This case involved a claim for property damage benefits arising out of an automobile accident which occurred on August 25, 2003, in which the vehicle insured by Defendant was rear-ended. Herold Aimable was alleged to have sustained damage to his vehicle arising out of the accident. Aimable had automobile insurance through Defendant. On September, 4, 2003, Defendant had an estimate of the damage prepared which indicated it would cost $1,676.16 (amount reduced by $250 deductible) to repair the damage. Defendant claims it did not pay that amount because it believed that Aimable was asserting a claim against the tortfeasor and the tortfeasor’s insurer. On October 16, 2003, Plaintiff’s attorney sent a letter to Defendant enclosing another estimate to repair the damage which totaled $2,135.44, and asking Defendant to pay that amount. Plaintiff filed suit on December 18, 2003. The Summons and Complaint were served by the Department of Insurance on January 7, 2004. On January 16, 2004, Defendant’s adjuster mailed a check for $1,676.16 to Plaintiff’s attorney. The Court heard competing motions for summary judgment as to whether Defendant confessed judgment. On May 3, 2006, the Court granted Plaintiff’s motion for summary judgment and found that he was entitled to attorney’s fees and costs.
[13 Fla. L. Weekly Supp. 746a]
2. The Court has based this order 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 vs. U.S.B. Acquisition Company, Inc., 734 So.2d 403 (Fla. 1999).
3. NUMBER OF HOURS: The parties have stipulated that 28.5 hours is reasonable in prosecuting this cause and determining entitlement to attorney’s fees and costs.
4. HOURLY RATE: The Court finds a reasonable hourly rate for Michael Tierney, Esquire in this case is $150.00 for work done in this straight-forward property damage benefit case. This is not the reasonable hourly rate Michael Tierney earns in the highly complex, litigitous, stressful, and uncertain world of a personal injury protection plaintiff’s attorney.
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. Michael Tierney did undertake 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 Plaintiff did provide evidence that Plaintiff could not obtain competent counsel without the application of a multiplier.
c. The Court finds the market in this jurisdiction does not require a contingency risk multiplier to obtain competent counsel in property damage benefits cases undertaken in conjunction with the representation of Plaintiff in other claims related to the same incident.
Accordingly, a contingency risk multiplier is not appropriate or applicable.
6. The Court finds that the Plaintiff’s counsel incurred reasonable costs in the amount of $324.50 during his representation of the Plaintiff in this case.
7. That prejudgment interest is due to Plaintiff’s counsel on the attorneys’ fees and costs from May 3, 2006, 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).
8. Plaintiff’s expert witness on attorneys’ fees, Kevin Weiss, Esquire, is entitled to be compensated for the time expended in preparing to testify and testifying in this case. Mr. Weiss reasonably expended 7.0 hours in this case, and a reasonable hourly rate for Mr. Weiss is $375.00 per hour, for a total expert fee of $2,625.00. 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).
WHEREFORE, it is hereby ORDERED AND ADJUDGED:
1. That Plaintiff’s Motion to Tax Attorneys’ Fees and Costs is hereby GRANTED.
2. Plaintiff shall take from Defendant the following:
Attorney’s Fees $4,275.00
Costs $324.50
Interest on attorney’s fees $129.66
Expert Witness Fees $2,625.00
TOTAL SUM $7,354.16
plus post-judgment interest of 9% per annum pursuant to §55.01, .02, and .03, Florida Statutes, all for which let execution issue after 21 days.
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