16 Fla. L. Weekly Supp. 74a
Insurance — Automobile — Attorney’s fees — Prevailing insured — Contingency risk multiplier — Where insured had difficulty obtaining counsel to represent him in suit for automobile collision benefits but ultimately was able to retain expert counsel on contingency basis, and likelihood of success at onset of suit was even, multiplier of 1.5 is appropriate
STEVEN COVINO, Plaintiff, vs. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. Circuit Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 502007CA005138 AN. November 17, 2008. Jack Schramm Cox, Judge. Counsel: Michael Bendell, Boca Raton, for Plaintiff. Richard Gaunt, Gaunt Pratt Radford & Methe, West Palm Beach. Steven Ainbinder, Boca Raton.
ORDER AND FINAL JUDGMENT ON PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND AMENDED MOTION FOR ATTORNEY’S FEES AND COSTS
THIS CAUSE having come before this Honorable Court for evidentiary hearing on November 14, 2008. The Court having reviewed the entire Court file and having heard testimony and receiving in evidence Plaintiff’s Exhibits #1 through #22, and being otherwise fully advised in its premises, the Court makes the following findings:
The Plaintiff was involved in three (3) motor vehicle accidents. The first accident in January 2005, resulted in the Defendant, Progressive Select Insurance Company making payment to the Plaintiff under its policy and receiving into its possession the Plaintiff’s damaged car together with the title to that car.
In March 2005, the Plaintiff purchased a new car to replace the 2000 Mitsubishi Eclipse GT which was totaled in the first accident. Apparently the Plaintiff liked the Mitsubishi Eclipse and therefore bought as a replacement car a 2003 Mitsubishi Eclipse. It is incontroverted that the Plaintiff continued to make payments for insurance coverage to Progressive Select Insurance Company at all times material hereto. Unfortunately, however, Progressive continued to bill and deliver insurance declaration pages which referenced the 2000 car which had been totaled. In August of 2006, the Plaintiff had another accident which was the first accident with the 2003 replacement car. When the claim was made by the Plaintiff to the Defendant, the Defendant denied coverage because the records of the insurance company showed only that there was coverage on the 2000 Mitsubishi but not on the 2003 Mitsubishi. For some reason the Defendant was unable to understand that the 2000 Mitsubishi had been totaled and that Progressive had possession of that wrecked car as well as the title to that car. Progressive went on to notify the Plaintiff that the 2003 Mitsubishi is not a covered vehicle and was “a non-owned vehicle.” However, in September 2006, Progressive changed the declaration sheet to show that the 2003 Mitsubishi Eclipse was insured. Having changed the declaration sheet, Progressive did nothing to pay the claim for the damage which occurred in the August 2006 accident. In February 2007, the Plaintiff had a second accident with the 2003 replacement car. Progressive agreed to provide coverage for the second accident, but continued to deny coverage for the August 2006 accident, and refused to pay “unrelated prior damage.”
Testimony at the hearing, together with Exhibits #1-#22, and the Affidavit filed by the Plaintiff establish that the Plaintiff contacted approximately 6 different law firms which he found in the Boca Yellow Pages. Each of the firms were ones who advertise that they took auto accident cases on a contingency fee, but none would take his collision case (the collision case had no personal injury component to it). Though the amount of damages (approximately $18,745.00) were relatively small in a litigation setting for law firms, the amount was significant to the Plaintiff. The Plaintiff had no money to pay a retainer or to pay attorney’s fees.
At or about the same time, Progressive was investigating an alleged fraud by the Plaintiff arising out of these accidents. Therefore, any attorney who took this case was additionally going to be faced with the potential of representing the Plaintiff in either a counterclaim or a separate action arising out of fraud. The Plaintiff, however, was able to engage the services of Michael S. Bendell, Esq. on March 16, 2007, and entered into a contingent fee contract for legal services on that date. (The Plaintiff’s Exhibit “F.H.3”) Though the Plaintiff’s bad luck in driving automobiles is fairly well documented, the Plaintiff’s good luck in locating Attorney Bendell is similarly well documented. Not only is Mr. Bendell a board certified civil trial lawyer, but the Court would consider him an expert in first party insurance litigation.
In April 2007, the Plaintiff filed suit against the Defendant, Progressive. From the initiation of the lawsuit for a period of approximately 1 year the Defendant, Progressive, defended the case. The lawyers for the Defendant are highly skilled trial lawyers, very well known and highly regarded and respected in this Circuit for their trial abilities.
The Court finds that under Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985) and Standard Guaranty Insurance Company vs. Quanstrom, 555 So.2d 828 (Fla. 1990) that the Plaintiff has established the factors to establish a lode star of $20,680.00. This lode star has been arrived at by multiplying 51.7 hours which is a reasonable amount of time multiplied by $400.00 an hour which is a reasonable rate. Even though the position of Progressive is that there was no denial of coverage as to the second accident in February 2007, the damages sustained in that accident together with the damages sustained in the August 2006 accident were in dispute and the issues were intertwined and could not be unraveled.
The Court further finds that a multiplier is appropriate under the factors set forth in Quanstrom. In awarding the multiplier, the Court is reminded that access to the Court is a Constitutional right. The primary rational for a contingency risk multiplier is to provide access to competent counsel for those who could not otherwise afford it. The Court finds that the likelihood of success at the onset of this case was approximately even. Therefore the Court applies a 1.5 multiplier to the lodestar to arrive at an attorney’s fee of $31,020.00.
Therefore Final Judgment is hereby entered in favor of the Plaintiff, Steven Covino and against the Defendant, Progressive Select Insurance Company as follows:
Attorney’s Fees: $31,020.00
Taxable Costs: $ 675.42
Interest at 11% from
June 10, 2008 $ 1,518.78
Expert Witness Fee: $ 2,925.00
(7.8 hours at $375.00/hr)
Total Amount of Final Judgment: $36,139.20
The total sum of the Final Judgment shall bear interest at the rate of 11% or such other rate as the Legislature shall set in the future from year to year, for which let execution issue.
