17 Fla. L. Weekly Supp. 211a
Online Reference: FLWSUPP 1703MORRInsurance — Attorney’s fees — Insured is entitled to reimbursement of attorney’s fees incurred after entry of order determining entitlement to fees where insurer continued to litigate insured’s entitlement to fees after entry of order and attempted to vacate and set aside that order — Insured is entitled to reimbursement for time and costs associated with taking deposition of insurer’s adjuster where deposition went forward as result of insurer’s emergency motion for reconsideration of order on insured’s entitlement to fees and need for insured to obtain discovery that insurer was withholding regarding its own attorney time — Attorney’s fees, costs, expert witness fees and prejudgment interest awardedReversed 18 Fla. L. Weekly Supp. 267a
BENJAMIN MARK MORROW, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 50 2007 SC 007082 XXXX MB. December 8, 2009. Nancy Perez, Judge. Counsel: Gary Russo, The Russo Law Firm, West Palm Beach. Melissa Lewis, Conroy, Simberg, et al., West Palm Beach.
ORDER AND FINAL JUDGMENT AWARDING ATTORNEY’S FEES AND COSTS
THIS CAUSE came to be heard before the Court on November 13, 2009 regarding the Plaintiff’s Motion for Attorney’s Fees and Costs based upon the prior Court rulings in this matter including the Court Order on Plaintiff’s Motion as to Entitlement to Fees and Costs/Confession of Judgment dated October 1, 2008, the Court’s Order on Rehearing/Motion to Vacate dated May 26, 2009, the Court’s Omnibus Order and Final Judgment in Favor of the Plaintiff dated November 3, 2009 [17 Fla. L. Weekly Supp. 125a], and the Court having heard argument of counsel and expert testimony and being otherwise fully advised in the premises, it is considered ordered and adjudged as follows:
The Court has reviewed the evidence presented, the Court file, case law and heard live testimony and the Court has made the following findings:
1. The case involved a claim where the Plaintiff filed a lawsuit based upon the Defendant not providing a copy of the insurance policy to the Plaintiff as requested. After filing of the lawsuit, a copy of the policy was provided to the Plaintiff and it was determined that there was a confession of judgment entitling the Plaintiff to reasonable fees and costs associated with the litigation of said claim. However, STATE FARM continued to litigate the issue of Plaintiff’s entitlement and the Court’s October 1, 2008 Order.
2. The Plaintiff’s attorney, Gary Russo, Esquire, testified that he spent 71.8 hours of his professional time in the prosecution of the Plaintiff’s claim from May 23, 2007 up until November 9, 2009. Additionally, a supplement of time was presented to the Court indicating an additional 5.4 hours of time from November 10, 2009 until the hearing on November 13, 2009, totaling 77.2 hours. Plaintiff’s expert witness, William Johnson, Esquire, testified that he felt 69.9 hours were a reasonable number of hours to be reimbursed up until the Court’s Final Judgment entered on November 3, 2009. Plaintiff’s expert did testify that if STATE FARM was still continuing to take issue with Plaintiff’s entitlement to attorney’s fees even after the Court’s Final Judgment, Plaintiff would be entitled to the reasonable number of hours expended subsequent to the Court’s Final Judgment.
3. STATE FARM’s expert testified that the Plaintiff was entitled to the 26.2 hours up until Judge Evans’ Court Order on October 1, 2008. STATE FARM’s expert testified that Plaintiff’s hours after October 1, 2008 were reasonable in amount but stated it was a “coin toss” as to whether Plaintiff was entitled to be reimbursed for this time. STATE FARM’s expert indicated that “this is why the Court gets the big bucks” with regard to making a decision as to the entitlement of the Plaintiff to recover for hours subsequent to the October 1, 2008 Court Order.
4. The Court finds that significant attorney time was necessary after the Court Order of October 1, 2008 which involved the Defendant failing to acknowledge the Plaintiff’s entitlement to a recovery of fees and costs and STATE FARM’s continued litigation as to entitlement and attempts to vacate and set aside the original Court Order.
The purpose behind our laws providing attorney’s fees for an insured who prevails in litigation against an insurer is to make the insured whole, i.e. in the same position the insured would have been if the insurer had not continued litigation. Aksomitas v. Maharaj, 771 So.2d 541 (Fla. 4th DCA 2001) review denied 790 So.2d 1105 (Fla. 2001); Clay v. Prudential Insurance Company, 617 So.2d 433 (Fla. 4th DCA 1993), citing Insurance Company of North America v. Lexow, 602 So.2d 528 (Fla. 1992). In fact, even if there is an appeal, where the insured is not successful, but the insured ultimately prevails in the underlying case, the Fourth District Court of Appeal has held that these appellate attorney’s fees are to be compensated to make sure that the insured is made whole as a result of the continued litigation by the insurer. Aksomitas v. Maharaj, 771 So.2d 541 (Fla. 4th DCA 2001) review denied 790 So.2d 1105 (Fla. 2001). If STATE FARM wished to protect itself from ongoing fees or prejudgment interest after the Court’s Order of October 1, 2008, all that was required to protect STATE FARM by any delay in determining the amount would be an acknowledgement of entitlement. Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So.2d 929, 931 (Fla. 1996); Arabia v. Siedlecki, 789 So.2d 380 (Fla. 4th DCA 2001). Instead, STATE FARM had continued to litigate the issue of Plaintiff’s entitlement to attorney’s fees and costs subsequent to the Court Order of October 1, 2008.
5. Issue was also made to the time and costs associated with the necessity of the deposition of STATE FARM insurance adjuster, Joe Faria. Plaintiff has filed Joe Faria’s Deposition in the Court file and the Court had taken testimony in regard to the deposition of Mr. Faria. It is clear that Mr. Faria’s deposition went forward prior to the Defendant’s “Emergency Hearing for Reconsideration” regarding the original Court Order and the Plaintiff’s entitlement to fees and costs. Joe Faria was listed as a witness in these emergency pleadings regarding the issue of entitlement. The Plaintiff also went forward with the STATE FARM deposition for the purpose of attempting to get information as to the Defendant’s own attorney time involved in this matter since the Defendant had objected to the production of any of the Defendant’s own attorney time records when originally sent discovery by the Plaintiff (a Court ruling later determined that the Plaintiff was entitled to a copy of the Defendant’s attorney time records). Early on in Joe Faria’s deposition on the second page of questioning, the Plaintiff immediately attempted to receive information from Mr. Faria in regard to Mr. Faria being a witness as to the Emergency Motion for Reconsideration and STATE FARM’s challenge of entitlement to the Plaintiff’s fees and costs in this matter. Mr. Faria was continually instructed not to answer questions on the deposition by defense counsel. The Court finds that this deposition “went forward” as a result of the Emergency Motion for Rehearing and the need for the Plaintiff to receive the discovery information that STATE FARM had been withholding. It is to be noted that Mr. Faria brought no documentation requested in the subpoena duces tecum nor were any file materials permitted to be attached as an exhibit and no production was made by STATE FARM of any materials in the deposition.
6. The Court finds that a reasonable hourly rate to reimburse Attorney Gary Russo is $350.00 per hour based on the Rowe factors, 472 So.2d 1145 (Fla. 1985) and the stipulation. Plaintiff’s expert witness testified that a reasonable hourly rate for the services of Attorney Gary Russo were $400.00 per hour. Plaintiff attorney is a-board certified trial attorney specializing in insurance matters for the past 23 years. Attorney Gary Russo had stipulated to the request of only $350.00 per hour in this matter. It was also stipulated by STATE FARM that the reasonable hourly rate for Attorney Gary Russo was $350.00 an hour.
7. Plaintiff attorney had also stipulated that he was not seeking a multiplier in this matter.
8. The Court finds that the hours expended by Attorney Russo totaling 68 hours up until the time of this Court’s Final Judgment were reasonable and necessary in the prosecution of the client’s claim. This is further evidenced by the expert testimony presented, affidavits, pleadings and testimony by Attorney Gary Russo and documents filed in support. See, State Farm v. Palma, 629 So.2d 830 (Fla. 1993).
9. The necessity of Attorney Russo’s efforts were further evidenced by the fact that the Plaintiff needed to respond to multiple pleadings and the matter was diligently defended by STATE FARM and their counsel even after numerous attempts were made by the Plaintiff in attempting to amicably resolve the claim without further litigation. Further, Attorney Gary Russo had set forth evidence that paralegal and staff time was necessary in the litigation of the claim but also stipulated to not seeking reimbursement of this time expended by his office staff.
10. The Court further finds that the reasonable costs to be reimbursed are $716.00 less $319.00, or $397.00. The Court is not reimbursing the Plaintiff’s costs for postage, copies and faxes as set forth in the Plaintiff’s cost attachment. The Court is including the filing fee, service of process fee, witness fees and service of process fees for Ed Welch and Fernando Roig and deposition cost and fees associated with State Farm insurance adjuster Joe Faria except the transcript, which was not used in the hearing. The testimony indicated that STATE FARM adjuster Ed Welch and legal representative for STATE FARM, Fernando Roig, were subpoenaed as witnesses to testify in regard to the reasonable hourly rate for Attorney Gary Russo. It was not until State Farm stipulated to said hourly rate on the day of the hearing that these witnesses were released from their subpoenas.
11. The Court further finds that Attorney William Johnson expended 6 hours as an expert witness and is entitled to be compensated at a rate of $400.00 per hour for a total of $2,400.00. STATE FARM stipulated to the number of Mr. Johnson’s hours as being reasonable and STATE FARM’s expert had agreed that the rate of $400.00 per hour was reasonable for Attorney William Johnson.
12. Plaintiff is also entitled to pre-judgment interest to be awarded pursuant to the Supreme Court Guidelines and Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So.2d 929 (Fla. 1996). Calculating fees and costs at the prejudgment interest rate of 8% totals $5.51 per day.
IT IS THEREFORE ORDERED AND ADJUDGED the following:
Plaintiff’s counsel, Attorney Gary Russo, shall recover from the Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, the sum of $23,800.00 as attorney’s fees (68 hours x $350.00), pre-judgment interest of $5.51 per day together with the sum of $397.00 for costs associated in this matter that shall bear interest at the legal rate. The Court further finds the sum of $2,400.00 to be paid by STATE FARM for the expert witness fees of Attorney William Johnson.
