16 Fla. L. Weekly Supp. 410a
Online Reference: FLWSUPP 165MASSI
Insurance — Personal injury protection — Attorney’s fees — Amount — No abuse of discretion in awarding attorney and paralegal hourly rates and number of hours that are supported by competent substantial evidence, despite existence of conflicting evidence — Contingency risk multiplier — Abuse of discretion to award multiplier where there is no evidence that insured had difficulty obtaining competent counsel, issue of treatment after IME cutoff was not novel, and any novelty or difficulty in discovery of fraud in case is reflected in number of hours awarded
Quashed with directions to affirm trial court’s award of contingency fee multiplier at 34 Fla. L. Weekly 2364b
PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant, vs. LOUISE MASSIE, Appellee. Circuit Court, 1st Judicial Circuit (Appellate) in and for Escambia County. Case No. 2008-AP-000005. L.T. Case No. 2002-SC-5418. February 13, 2009. An appeal from the County Court, Escambia County, Division V. Counsel: Betsy E. Gallagher, Kubicki Draper, P.A., Tampa; and Amy L. Miles, for Appellant. Louis K. Rosenbloum, Louis K. Rosenbloum, P.A., Pensacola, for Appellee.
(JAN SHACKELFORD, J.) Progressive Express Insurance Company (hereinafter Progressive) appeals the order of the trial court granting Plaintiff’s Motion for Attorneys’ Fees and Costs entered in County Court Case Number 02-SC-5418. This Court has jurisdiction pursuant to Art. V §5(b), Fla.Const. and Fla.R.App.P. 9.030(c)(1)(A).
The facts are as follows: Louise Massie (hereinafter Massie) was injured in a motor vehicle accident on March 16, 2002. Massie was insured for the accident by Progressive under a policy which provided personal injury protection (PIP) benefits. After Progressive declined payment for certain chiropractic treatment obtained by Massie after an IME, she filed an action for damages against Progressive in the summary claims division of county court through her attorney, Arthur A. Shimek. Her attorney was retained under a contingent fee agreement.
The jury trial resulted in a verdict for Progressive. Post-trial, Massie’s attorney filed a motion asking the trial court to strike Progressive’s expert witness’ testimony and direct a verdict in plaintiff’s favor on the ground that Progressive, through its expert witness, perpetrated a fraud on the court. The trial court granted the motion to strike. The trial court then determined that without the expert there was no evidence from which a jury could have lawfully returned a verdict in Progressive’s favor and granted Massie’s motion for directed verdict. The trial court entered final judgment in Massie’s favor, awarding $4,051.20 in PIP benefits, $1,054.64 in prejudgment interest, and reserving jurisdiction to award attorney’s fees and costs. The handling of the case from the filing of the complaint through the final judgment took nearly four years.
Progressive appealed the final judgment to the circuit court, and Massie was represented on appeal by Louis K. Rosenbloum through a contingent fee agreement. This Court affirmed the judgment and granted Massie’s motion for appellate attorney’s fees, remanding the cause to the county court to determine the amount. On December 6, 2007, the trial court conducted a hearing on Massie’s Motion for Attorneys’ Fees and Costs. On January 4, 2008, a final judgment was entered for $408,286.11 which included costs, attorneys’ fees (trial and appellate counsel), and prejudgment interest.
While there is no dispute as to Massie’s entitlement to fees and costs, Progressive, by this appeal, argues that the trial court abused its discretion by: (a) applying a multiplier in this case; (b) awarding of an hourly rate for the trial attorney and paralegal services without a finding of reasonableness of the same; and, (c) awarding all requested trial counsel and paralegal time without a finding of reasonableness.
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 Company 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).
Award of Hourly Rate
The trial court awarded Massie’s trial counsel $325.00 per hour. In doing so, the trial court considered counsel’s experience, especially in the field of PIP cases, as well as the fact that counsel has previously been awarded $325.00 per hour in other PIP cases. Trial counsel’s expert witness testified by affidavit that a reasonable rate for counsel was $325.00. The trial court made specific findings of reasonableness in the Final Judgment for Costs and Attorneys’ Fees as follows: “Mr. Heath states a reasonable rate for Mr. Shimek is $325.00/hour. Mr. Heath further establishes a reasonable rate for Mr. Shimek’s paralegal, Teresa Shimek, at $105.00/hour, and for his computer/communications legal assistant at $75.00/hour and the court agrees.”
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. Massie’s expert is not from the local area, nor has he handled a PIP case in Escambia or Santa Rosa County. Conflicts in the evidence are to be resolved by the trier of fact, and the rate of $325.00 per hour is supported by competent substantial evidence. Therefore, this Court is unable to say that the trial court abused its discretion on this issue. Similarly, it cannot be said that there was an abuse of discretion in awarding the hourly rates for paralegal fees.Number of Hours
The trial court awarded all attorney and paralegal time requested by trial counsel as follows: 446.80 hours for trial attorney time; 43.6 hours for paralegal time at $105 per hour; 142.0 hours for paralegal time at $75.00 per hour. “In determining the hourly rate, the number of hours reasonably expended, and the appropriateness of the reduction or enhancement factors, the trial court must set forth specific findings.” Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1151 (Fla.1985). In the Final Judgment for Attorneys’ Costs and Fees, the trial court found as follows: “The court finds reasonable and credible the testimony of plaintiff’s expert, Robert Heath.” The testimony of this expert included the opinion that the specific time expended by trial counsel and paralegals was reasonable and necessary due to the excessive litigation in the case beginning during the discovery process through trial, and post trial. The number of hours claimed was challenged by Progressive and argued to the trial court at the hearing. As stated above, conflicts in the evidence are to be resolved by the trier of fact. The number of hours expended is supported by competent substantial evidence, and this Court is unable to say that the trial court abused its discretion on this issue. Moreover, this Court finds that the language of the Final Judgment for Attorneys’ Costs and Fees satisfies the requirements for specific findings under Rowe.
Multiplier
Although the trial court spent considerable time in detailing its order to justify the award of a multiplier for trial counsel, paralegals, and appellate counsel, this Court finds the facts of the instant case to be virtually indistinguishable from those in 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, 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 Fifth District Court.
In holding that the use of a fee multiplier was unwarranted, the Fifth District noted:
[w]hile it would be easy to characterize this case as a run of the mill PIP dispute, admittedly it was somewhat more than that. Mr. Schultz’s attorney expended 193.75 hours, a significant amount of time, in a successful effort to undermine the credibility of Progressive’s chiropractic expert. However, it is hardly unusual that one side searches for evidence to impeach or discredit the other side’s expert. The additional work is reflected in the lodestar amount, and, consequently, should have little or no impact on the need for a multiplier. Id. at 1029.
As in the Schultz case, the use of a multiplier in the case at hand should also fail. The initial dispute was over $4000. In addition, the primary consideration in applying a multiplier is the plaintiff’s ability to obtain competent counsel. Id. at 1030. There was no evidence that Louise Massie had any difficulty obtaining competent counsel to represent her, either at the trial or appellate level. Whether the trial attorney would have taken the case without a multiplier is immaterial. Id. Furthermore, the significance of the lack of any evidence offered by plaintiff regarding difficulty obtaining competent counsel is addressed in another opinion in this circuit in Mercury Insurance Company of Florida v. A. Bayou Chiropractic Center, P.A., 15 Fla. L. Weekly Supp. 241 (Fla. 1st Cir. Ct. Nov. 14, 2007).
Finally, the issue of chiropractic care after an IME cut-off is not novel. To the extent that this case was unusual due to the discovery of fraud, “[t]he ‘novelty and difficulty of the question involved’ should normally be reflected by the number of hours reasonably expended on the litigation.” Rowe at 1150. This Court found above that the number of hours awarded was based on competent substantial evidence. Even without the multiplier of 2.0, the total fee awarded would be $178,038, plus prejudgment interests and costs, which is substantial. The award of double that amount shocks the judicial conscience. Accordingly, 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 Attorneys’ Fees and Costs consistent with this opinion deleting that portion of the order awarding a fee multiplier.
__________________
1This Court notes that the multiplier applied by the trial court applied to both the attorneys’ fee (trial and appellate counsel) and paralegal fee. Although this opinion deals with the multiplier awarded for all fees, the Court could not find any authority for awarding a multiplier to paralegal time and the persuasive authority would suggest otherwise. Louis v. Nelson, 646 F.Supp. 1300, 1320 (S.D. Fla. 1986).
