15 Fla. L. Weekly Supp. 241a

Attorney’s fees — Insurance — Personal injury protection — Amount — Hourly rate — Although $350 hourly rate appears substantial for area, it is supported by competent substantial evidence that counsel has billed other clients at rate and been awarded rate as expert witness in PIP cases — Costs — Expert witness fees — No abuse of discretion in taxing expert witness fees as costs where expert was required to spend 5 hours reviewing file and preparing for deposition that lasted additional hour, and expert testified that he expected to be paid reasonable fee for services — Contingency risk multiplier — Abuse of discretion to award multiplier where there was no evidence that insureds who assigned claims to medical provider had difficulty obtaining counsel, and litigation was not of unusual duration or difficulty

CERT. DENIED at 33 Fla. L. Weekly 2585i MERCURY INSURANCE COMPANY OF FLORIDA, Appellant, vs. A BAYOU CHIROPRACTIC CENTER, P.A., d/b/a ART OF CHIROPRACTIC, a/a/o Sidney White, Appellee. Circuit Court, 1st Judicial Circuit (Appellate) in and for Escambia County. Case No.17 2006-AP-0046. L.T. Case No. 17 2006-SC-00436. MERCURY INSURANCE COMPANY OF FLORIDA, Appellant, vs. A BAYOU CHIROPRACTIC CENTER P.A., d/b/a ART OF CHIROPRACTIC, a/a/o Aida White, Appellee. Case No. 17 2006-AP-0046 (Consolidated from Circuit Court Case No. 2006-AP-0047). L.T. Case No. 17 2006-SC-0851. November 14 2007. An Appeal from the County Court, Escambia County, Division V. Counsel: Christopher B. Hopkins and Allison S. Miller-Bernstein, Cole, Scott & Kissane, P.A., for Appellant. Louis K. Rosenbloum, for Appellee.

(PAUL A. RASMUSSEN, J.) Mercury Insurance Company of Florida (hereinafter Mercury) appeals the orders of the trial court granting Plaintiff’s Motion for Attorney’s Fees and Costs entered in County Court Case Numbers 06-SC-0436 and 06-SC-0851. By agreement of the parties, the appeals have been consolidated into Case Number 2006-AP-0046 for final disposition. This Court has jurisdiction pursuant to Art. V, § 5(b), Fla. Const. and Fla.R.App.P. 9.030(c)(1)(A).

The facts as accepted by Appellee, A Bayou Chiropractic Center, P.A., d/b/a Art of Chiropractic, a/a/o Sidney White and Aida White (hereinafter Bayou Center) are set forth in Mercury’s Statement of the Case and Facts and are as follows: Bayou Center filed two complaints as assignee of Sidney White and Aida White seeking personal injury protection benefits from Mercury resulting from a February 12, 2004 accident. As a result of the accident, Sidney and Aida White sought chiropractic treatment from Bayou Center which submitted its bills for said treatment to Mercury. On August 10, 2004, an independent medical examination (IME) was performed on the Whites revealing that further testing or treatment with regard to chiropractic intervention was not reasonable, related or medically necessary. Approximately two (2) weeks after the IME, Mercury suspended payment of benefits for all chiropractic treatment for the Whites effective August 23, 2004.

The Complaint alleges that Mercury failed to timely pay a $124.00 chiropractic bill for both Sidney and Aida White resulting in the insured assigning his interest in the policy to Bayou Center. The case was litigated for approximately six (6) months until it was settled by the parties on or about July 13, 2006. Although the original Complaint alleged an amount due and owing to Bayou Center in the amount of $124.00, the case was ultimately settled in Sidney White’s favor in the amount of $1,114.00 and Aida White’s favor in the amount of $1,648.00. On October 5, 2006, the trial court conducted a hearing on Bayou Center’s Motion for Attorney’s Fees and Costs.

While there is no dispute, as to Bayou Center’s entitlement to fees and costs, Mercury by this appeal argues that the trial court abused its discretion by (a) applying a multiplier in this case; (b) its finding as to a reasonable hourly rate for the attorney and paralegal services; (c) awarding Bayou Center’s expert witness fees related to the attorney’s fee hearing; and (d) applying a multiplier to the paralegal fees.

The award of attorney’s fees is a matter committed to sound judicial discretion which will not be disturbed on appeal, absent a showing of clear abuse of discretion. Barthlow v. Jett, 930 So.2d 739 (Fla. 1st DCA 2006) (citing DiStefano Construction, Inc. v. Fidelity and Deposit Co. of Maryland, 597 So.2d 248, 250 (Fla. 1992)). To determine whether an abuse of discretion has occurred, the appellate court must look to the record for competent substantial evidence to support the trial court’s decision. Jannotta v. Hess, 959 So.2d 373, 374 (Fla. 1st DCA 2007). When supported by competent substantial evidence, the trial court’s decision will not be overturned even where the award of fees appears to be substantial. Bodne v. Ferrell, 233 So.2d 862 (Fla. 3rd DCA 1970).

I. Amount of Hourly Rate

The trial court awarded Bayou Center’s counsel $350.00 per hour. In doing so, the trial court considered counsel’s experience especially in the field of PIP cases. Although trial counsel has never charged an hourly rate to a client to represent that client in a PIP case, counsel testified that he does have some other clients who are actually billed at the rate of $350.00 per hour. Trial counsel further testified that he had been awarded $350.00 per hour in the past for serving as an expert witness in PIP cases. Counsel’s expert witness testified that in his opinion the hourly rate for counsel handling a PIP as trial counsel should be higher than the hourly rate for an expert witness offering opinion evidence on the issue of attorney’s fees. Trial counsel’s expert witness is a local attorney who is familiar with the prevailing hourly rates charged by attorneys in the area of Escambia and Santa Rosa counties for PIP cases. Mercury’s expert witness is not from the local area nor was he familiar with the rates charged by attorneys for PIP cases in the Escambia-Santa Rosa county area but relied in part on an informal survey conducted by the Florida Bar regarding hourly rates. Conflicts in evidence are to be resolved by the trier of fact and although the award of $350.00 per hour appears to be somewhat substantial for the Escambia-Santa Rosa county area, it is supported by competent substantial evidence and this Court is unable to say that the trial court clearly abused its discretion on this issue. Id. at 862. Similarly, it cannot be said that there was an abuse of discretion in awarding the hourly rate for paralegal fees.

II. Award of Bayou Center’s Expert Witness Fees

Pursuant to § 92.231, Florida Statutes, trial courts have the discretion to tax expert witness fees as costs for an attorney who testifies as an expert as to reasonable attorney’s fees. Travieso v. Travieso, 474 So.2d 1184, 1186 (Fla. 1985). The discretion should be exercised, however, only in those cases where the time applied for preparation and testifying is burdensome. Id. at 1186. It has also been held that the award of expert fees is not discretionary if the testifying attorney expects to be compensated for his or her testimony. Stokus v. Phillips, 651 So.2d 1244, 1246 (Fla. 2nd DCA 1995).

Mercury relies upon the holding of United States Fidelity and Guaranty Co. v. Rosado, 606 So.2d 628 (Fla. 3rd DCA 1992). Initially, the Court notes that Stokus was decided subsequent to Rosado. However, significant in Rosado is the fact that that particular PIP case was settled six (6) days after the case was filed. In the case at hand, the litigation continued for approximately eight (8) months at the time the order was entered granting Plaintiff’s Motion for Attorney’s Fees. Bayou Center’s expert witness was required to spend five (5) hours in reviewing the file and preparing for his deposition which lasted an additional hour for a total of six (6) hours. The expert witness further testified that he expected to be paid a reasonable fee for his services. There is competent substantial evidence to support the trial court’s decision to tax as costs the expert witness fee and Mercury’s claim of abuse of discretion on that issue isdenied on the merits.

III. Multiplier

Although the trial court spent considerable time in detailing its order to justify the award of a multiplier in this case for both trial counsel and his paralegal, this Court finds the facts of the instant case to be virtually indistinguishable from those in Progressive Express Insurance Co. v. Schultz with the exception of the amount of time spent by the attorney in the Schultz case. Progressive Express Insurance Co. v. Schultz, 948 So.2d 1027 (Fla. 5th DCA 2007).

In the Schultz case, Donald Schultz, the insured, was injured in an automobile accident. He began chiropractic treatment and after four (4) months Progressive elected to have Mr. Schultz examined by another chiropractor. As a result of that IME, it was determined that no further chiropractic treatment was reasonable, necessary or related to the accident and Progressive stopped paying PIP benefits leaving Mr. Schultz with a balance of $1,315.30 owed to the treating chiropractor. A PIP suit was then filed in the county court seeking to recover the outstanding chiropractic bills, mileage, attorney’s fees and costs. Following extensive pre-trial discovery, the parties settled the bulk of their dispute, leaving only the issue of the amount of attorney’s fees and the appropriateness of a fee multiplier for resolution by the court. As in the case at hand, the entitlement to attorney’s fees was conceded and the county court approved a fee request for 193.75 hours at $400.00 per hour and additionally approved a 2.5 multiplier. Progressive appealed the fee award to the circuit court which affirmed the county court’s judgment and discretionary certiorari review was granted by the District Court.

As in the Schultz case, the use of a multiplier in the case at hand should also fail. There was no evidence that either Sidney or Aida White who assigned their claims to Bayou Center had any difficulty obtaining competent counsel to represent them. Similarly, although the litigation took place over a period of approximately six (6) months, it does not appear to be that unusual based upon other similar contract cases. Trial counsel readily admitted that this type of litigation is form driven and he utilizes several different forms when filing the complaint. Additionally the initial dispute as previously noted was $124.00 as it related to both Sidney and Aida White. The effect of the award of a multiplier results in a total fee award on the Sidney White case in the amount of $42,706.00 and $7,493.00 in the Aida White case for a total of $50,199.00 exclusive of costs and interest. As in the Schultz case, there is nothing about this case that warrants a fee multiplier especially in light of the substantial hourly rate awarded by the Court. Id. at 1033. As such, the Court finds that it was an abuse of discretion to award a fee multiplier in this case.¹

AFFIRMED IN PART AND REVERSED IN PART AND REMANDED for entry of an amended order on Plaintiff’s Motion for Attorney’s Fees and Costs consistent with this opinion deleting that portion of the order awarding a fee multiplier. The cross motions for appellate attorney fees are denied.

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¹The Court notes that the multiplier applied by the trial court applied to both the attorney’s fee and paralegal fee. Although this opinion deals with the multiplier awarded for both fees, the Court could not find any authority for awarding a multiplier to paralegal time and the persuasive authority would suggest otherwise. U.S. v. Nelson, 646 F. Supp. 1300, 1320 (S.D. Fla. 1986).