17 Fla. L. Weekly Supp. 1251a

Online Reference: FLWSUPP 1712DIAZInsurance — Personal injury protection — Attorney’s fees — Amount — Reasonable hourly rates commensurate with experience and competence of counsel are set — Contingency risk multiplier — Award of multiplier is not appropriate

FLAGLER MEDICAL CENTER (a/a/o Elda Diaz), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-18391 COCE 53. August 10, 2010. Robert W. Lee, Judge. Counsel: Stephen Cameron, Miami, for Plaintiff. Russel Kolodziej, Miami Gardens, for Defendant.

FINAL JUDGMENT ON PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES AND COSTS

THIS CAUSE came before the Court on August 5, 2010 for hearing of the Plaintiff’s Motion for Attorneys’ Fees and Costs, and the Court’s having reviewed the Motion and entire Court file; received evidence; heard argument; and been sufficiently advised in the premises, the Court finds as follows:

Background. On February 12, 2010, this Court entered its Final Judgment in Favor of Plaintiff upon the jury’s verdict, also finding that Plaintiff was entitled to an award of fees as prevailing party. On February 26, 2010, the Plaintiff filed its Motion to Tax Attorneys’ Fees and Costs. On April 30, 2010, the Plaintiff filed its Time Sheets and Affidavit of Costs. On May 14, 2010, this Court entered its Order Preliminary to Hearing on Motion for Attorney’s Fees and Costs, directing that the Defendant serve any specific written objections to Plaintiff’s time entries.

On June 11, 2010, the Defendant filed its expert’s reductions. In its Notice of Filing, the Defendant advised the Court that the Defendant did not object to 146.3 hours of time claimed by Plaintiff’s counsel. However, the Defendant objected to 76.2 hours of time billed, as well as the hourly rates requested. Of the 76.2 hours objected to, 29.6 of these hours pertain to time Plaintiff’s counsel is seeking for having two attorneys prepare for and attend the jury trial.

The Court set the matter for hearing for August 5, 2010. The hearing took more than an hour and a half, not including the time taken by the Court in Chambers to review all relevant matters, including the Court’s trial notes, and time taken to prepare this order.

The Plaintiff seeks a total of 222.5 hours (82.1 for Crystal Harvey, Esq. at $350.00 per hour; 135.5 hours for Stephen Cameron, Esq. at $350.00 per hour; 3.3 hours for Henry Crouser, Esq. at $325.00 per hour; and 1.6 hours for Daniela D’Andrea, paralegal, at $100.00 per hour). As noted, the Defendant, through its expert, has conceded that 146.3 hours of work was reasonable.

At the hearing both sides appeared with their capable expert witnesses, Jonathan Brooks, Esq. for the defense and Todd Landau, Esq. for the Plaintiff. Mr. Landau agreed with 17.5 of the 76.2 hours objected to by Mr. Brooks, leaving 58.7 hours in dispute. The Court has also considered the detailed written submissions of both parties, the argument of the attorneys, and the controlling case law. In addition, the Court is quite familiar with and conducted its own thorough review of all matters of record in this case. This Court has presided over hundreds of PIP cases, and is quite familiar with the issues involving the pleadings, discovery, strategy, motion practice and resolution related to PIP cases litigated in South Florida.

Conclusions of Law. The Court has determined that the number of hours reasonably expended by Plaintiff’s counsel in this case is a total of 195.2 hours.

The Court has also determined based upon the criteria set forth in Disciplinary Rule 4-1.5(b) of the Florida Bar Rules of Professional Responsibility that a reasonable hourly rate for the hours expended by Plaintiff’s counsel is $350.00 for Crystal Harvey, Esq.; $345.00 for Stephen Cameron, Esq.; $275.00 for Henry Crouser, Esq.; and $100.00 for Daniela D’Andrea, paralegal. The Court has considered all testimony presented on this issue, including Defendant and its expert.

In making its ruling, the Court specifically considered the following factors in determining the reasonable hourly fee and the reasonable number of hours spent litigating this case:

A. The time and labor required, the novelty and difficulty of the question involved and the skill requisite to perform the legal service properly.

B. The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.

C. The fee customarily charged in the locality for similar legal services.

D. The amount involved and the results obtained.

E. The time limitations imposed by the client or by the circumstances.

F. The nature and length of the professional relationship with the client.

G. The experience, reputation, and ability of the lawyer or lawyers performing the services.

H. Whether the fee is fixed or contingent.

In this case, the Defendant argues forcefully that the hourly rates sought by PIP counsel in South Florida are escalating at an unreasonable rate. Indeed, the Defendant’s expert urges that the hourly rates for PIP lawyers have gotten out of hand, pointing out that top-notch law firms involved in other types of litigation are not able to command the hourly rate sought by PIP lawyers, particularly those PIP practitioners with relatively few years of experience.

In this case, Stephen Cameron, an attorney with 10 years experience and about 80 jury trials, and Crystal Harvey, an attorney with 11 years trial experience, are both seeking $350.00 an hour. Defense expert argues instead that the rate should be $275.00 an hour. Henry Crouser, an attorney who has been in private practice for only three years, is seeking $325.00 an hour. Defense expert argues instead that the rate should be $250.00 an hour. This difference of $75.00 for each attorney could result in a fee reduction of over $15,000.00.

In response, Plaintiff’s expert points out that until recently, other fee experts hired by United Automobile Insurance Company have stipulated to higher hourly rates. As an example, Mr. Landau noted that two of United’s previous experts agreed that his PIP hourly rate of $375 was reasonable. This Court has had other fee cases with United it which experts have stipulated that as high as $400 an hour was reasonable. On the other hand, the Court agrees that few areas of the law are garnering the hourly rates sought by PIP attorneys — indeed, even Frank Ward recently noted that “not even President Obama makes $400 an hour.”¹ That all being said, however, the issue is whether the “difficulty of the question involved and the skill requisite to perform the legal services properly” militates in favor of a higher hourly rate for PIP work.

Notwithstanding this Court’s prior rulings that PIP lawyers are not so hard to find that a multiplier should be awarded only in the most unusual cases, the Court’s experience shows that a relatively small group of attorneys in South Florida handle PIP cases. Those that do typically dedicate the great majority of their practices to PIP. They are well versed on the nuances of the law, as well as its legislative history and frequently-conflicting case law. They handle a case load involving varying versions of the PIP statute and face the prospect of trials before juries who frequently have a hard time grasping the technical minutiae of the law. Additionally, this Court has had a hard time finding a pool of qualified mediators and arbitrators who are able to competently handle referral of these types of cases. In the Court’s experience, PIP cases pose difficult questions and require a higher level of skill to handle than most commercial litigation. As a result, the Court does not agree with Mr. Brooks’ analysis of the hourly rate issue.

The Court finds that Crystal Harvey, Esq. presents a level of competence and experience that warrants the $350.00 hourly rate sought. Stephen Cameron, Esq., with a little less experience, warrants an hourly rate of $345.00. The Court agrees, however, with the defense expert that Henry Crouser, Esq. should have a lower hourly rate commensurate with his level of experience, and the Court sets that rate at $275.00.

Additionally, based on controlling case law dealing with the issue of awarding of attorney’s fees, the Court notes several guidelines to assist in determining whether a fee is reasonable:

· The Court generally should not award fees for claims on which the moving party was unsuccessful. Baratta v. Valley Oak Homeowners’ Ass’n, Inc., 31 Fla. L. Weekly D456a (Fla. 2d DCA 2006). In the instant case, the Plaintiff recovered only about half of what it sought. Much of the work in the case, however, is for work which cannot simply be segregated and reduced merely based on the amount recovered. Nevertheless, the Court has accordingly made an appropriate reduction.

· The Court must also consider the time that would ordinarily have been spent by lawyers in the community to resolve this particular type of dispute, which is not necessarily the number of hours actually expended by counsel in the case at issue. Trumbull Ins. Co. v. Wolentarski, 2 So.3d 1050, 1056-57 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D274a]; Baratta, 31 Fla. L. Weekly D456a. In the instant case, however, the evidence did not reveal that Plaintiff’s counsel was “over-thorough” in research and preparation, but rather moved forward in the case in a manner reasonable for a PIP trial being presented to a jury, rather than simply a judge. The Court notes that it was the Defendant, and not the Plaintiff, who sought a jury trial, and it is no secret that preparing for trial before a jury is simply going to be more expensive.

· As a general rule, duplicative time charged by multiple attorneys working on the case is usually not compensable. Baratta, 31 Fla. L. Weekly at D456a. The Court agrees with defense expert’s opinion that some of the time for preparing and attending trial was duplicative. As a result, the Court has made an appropriate reduction of 7.5 total hours in this case.

· The Court should also consider the amount of fees sought in relation to the amount in dispute. See Progressive Express Ins. Co. v. Schultz, 948 So.2d 1027, 1032-33 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D548b]. In determining whether the fee sought in this case is reasonable, the Court has therefore considered that this is a County Court case seeking less than $15,000 in damages.

· The Court should consider the nature of the defense, particularly whether the nonmoving party went “to the mat” in the case. See Progressive, 948 So.2d at 1032. If the non-moving party took positions and actions to be litigious, it cannot now be heard to complain that it “invited the moving party to dance.” See Roco Tobacco Co. v. Div. of Alcoholic Beverages, 934 So.2d 479, 482 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D1826b]. Although this case involved a seemingly small amount of damages in relation to the fee sought, the Court notes that the Defendant vigorously defended this case until such time as the case was tried. The Court notes that the Defendant filed affirmative defenses and sought extensive discovery. The Defendant engaged in an extensive motion practice, filing more than fifteen (15) motions prior to judgment. Additionally, the case went through a mediation and then an arbitration before it came before a jury. It was the Defendant, and not the Plaintiff, who sought a trial de novo on the arbitrator’s decision. The Defendant decided against calling several of its witnesses, but not until the morning of trial. Moreover, because the Defendant has a widely-known reputation of “going to the mat” in litigation, the Court finds that most of the Plaintiff’s preparation was reasonable.

· The Court should further consider whether it has received adequate documentation to support the number of hours claimed. As stated by the Florida Supreme Court, “inadequate documentation may result in a reduction in the number of hours claimed.” Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (Fla. 1985). This is true because “Florida courts have emphasized the importance of keeping accurate and current time records of work done and time spent on a case, particularly when someone other than the client may pay the fee.” Id. The Court finds that the documentation supporting the fee request in the instant was generally adequate and well supportive of the fee request. As noted, the Court has made an appropriate reduction for time spent for two attorneys to prepare for and attend a trial. At the hearing, the Court noted that the recordkeeping for these time entries was, uncharacteristically for these counsel’s time records, lacking detail, which contributed in part to the Court’s reduction.

The ultimate goal of all the guidelines set forth above is to determine whether a fee is “reasonable.” The Court therefore finds that 73.55 hours for Crystal Harvey, Esq. at an hourly rate of $350.00; 118.05 hours for Stephen Cameron, Esq. at an hourly rate of $345.00; 3.3 hours for Henry Crouser, Esq. at an hourly rate of $275.00; and 0.3 hours for Daniela D’Andrea, paralegal at an hourly rate of $100.00 are reasonable.

In sum, the Court finds that the time awarded in this case was reasonable based on the conduct of the Defendant in denying the claim for PIP benefits; the general reputation of the Defendant in vigorously defending its denials of benefits; the manner in which this particular case was defended; the amount of time the attorney needed to bring this case to a conclusion; the amount recovered; and the specific factors discussed in Rowe, Bell, and Rule of Professional Responsibility 4-1.5.

The Court considered evidence of whether it should award a contingency risk multiplier and considered:

A. Whether the relevant market requires a contingency fee multiplier to obtain competent counsel;

B. Whether the Plaintiff’s attorney was able to mitigate the risk of non-payment in any way; and

C. Whether any of the factors set forth in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985) are applicable, especially, the amount involved, the results obtained and the type of fee arrangements between the Plaintiff and the Plaintiff’s attorney.

The Court finds that the award of a multiplier is not appropriate in this case. Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990).

Finally, the Court finds that the Plaintiff is entitled to taxable costs in the amount of $4,847.03, all of which the Court finds to have been reasonably incurred. Accordingly, it is

ORDERED AND ADJUDGED that Plaintiff shall recover the sum of $67,407.25 (the reasonable attorney fee for the law firm that represented the Plaintiff, FLAGLER MEDICAL CENTER) from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, 1313 N.W. 167th Street, Miami, FL 33169, plus interest thereon at 6% per annum from February 12, 2010 to the date of this Judgment (Clay v. Prudential, 617 So.2d 443 (Fla. 4th DCA, 1993)) [21 Fla. L. Weekly D809b], in the amount of $1,972.35, for a total of $69,379.60, that shall bear interest at the rate of 6% per annum until paid, for which sums let execution issue. It is also

ORDERED AND ADJUDGED that Plaintiff’s counsel shall recover the sum of $4,847.03 as costs incurred on behalf of Plaintiff, FLAGLER MEDICAL CENTER, that shall bear interest at the rate of 6% per annum until paid, for which sum let execution issue. It is further

ORDERED AND ADJUDGED that Plaintiff’s attorney fee expert, Todd Landau, Esq., shall recover the sum of $1,925.00, representing 5.5 hours at $350.00 per hour that shall bear interest at the rate of 6% per annum until paid, for which sum let execution issue.

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¹Assuming the President were getting paid based only on a 40-hour work week, he would receive less than $195.00 an hour.