19 Fla. L. Weekly Supp. 402a

Online Reference: FLWSUPP 1905WOODInsurance — Personal injury protection — Attorney’s fees — Contingency risk multiplier — Expert testimony is sufficient to establish that medical provider would have difficulty finding competent counsel without possibility of multiplier; provider is not required to testify to actual difficulty confronted — Multiplier of 2.0 is justified where attorney was not able to mitigate risk of nonpayment, fee arrangement was pure contingency fee arrangement, underlying claims were relatively small, attorney recovered full amount demanded plus interest, insurer was “purpose-driven” opponent seeking to establish precedent regarding need for perfect disclosure and acknowledgment form, and likelihood of success at outset was 50% — Costs — Travel time for expert witness is not compensable — Question certified

PRIME CARE CHIROPRACTIC CENTERS, P.A., as assignee of Darlene Woodard, Plaintiff, vs. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 10th Judicial Circuit in and for Polk County, Civil Division. Case No. 53-2008CC-7342-0000-00. November 17, 2010. Nunc pro tunc to October 12, 2010. J. Kevin Abdoney, Judge. Counsel: Kimberly A. Driggers, for Plaintiff. G. Douglas Nail, for Defendant.

REVERSED. District court did not reach certified question. 37 Fla. L. Weekly D1107aAMENDED FINAL JUDGMENT AWARDINGATTORNEY FEES AND COSTS[Original Opinion at 18 Fla. L. Weekly Supp. 206b]

THIS CAUSE came to be heard upon the Plaintiff’s Motion for Attorney’s Fees and Costs after the Defendant confessed judgment in this cause on May 12, 2010 by paying the claim in full, including interest. A hearing was conducted on September 27, 2010. The Court received testimony from the Plaintiff’s office manager, John R. Tucker, III, the Plaintiff’s attorney, Kimberly Driggers, Esquire, the Plaintiff’s expert witness Kevin B. Weiss, Esquire, and the Defendant’s expert witness, Amanda H. Reher, Esquire. The Court received in evidence the curricula vitae of Kimberly Driggers, Esquire, Kevin B. Weiss, Esquire, and Amanda H. Reher, Esquire. The Court also received in evidence a copy of a letter dated October 23, 2009 from the Defendant’s attorney to the Florida Department of Financial Services. The Court heard arguments of counsel for the Plaintiff and the Defendant and has considered applicable law. After careful consideration of the foregoing, the Court enters its Order herein:

FACTUAL FINDINGS AND ANALYSIS

A. ENTITLEMENT TO FEES AND COSTS

At the hearing, the parties stipulated that Kimberly Driggers, Esquire, is entitled to fees and costs pursuant to Florida Statute section 627.428. The Court accepts the stipulation of the parties and finds that Kimberly Driggers, Esquire, is entitled to reasonable attorney’s fees and costs.

B. REASONABLE HOURS EXPENDED

At the hearing, the parties stipulated that Kimberly Driggers, Esquire, reasonably expended forty-three and three-tenths (43.3) hours in the prosecution of the underlying lawsuit. The Court accepts the stipulation of the parties and finds that Kimberly Driggers, Esquire, reasonably expended forty-three and three-tenths (43.3) hours in the prosecution of the underlying lawsuit.

C. REASONABLE HOURLY RATE

When determining the reasonable hourly rate upon which to base an award of attorney’s fees, the Court must take into account all of the factors listed in the Rules of Professional Conduct¹ with the exception of the time and labor required, the novelty and difficulty of the question involved, the results obtained, and whether the fee is fixed or contingent. Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145, 1150-51 (Fla. 1985). “The party who seeks the fees carries the burden of establishing the prevailing ‘market rate,’ i.e., the rate charged in that community by lawyers of reasonably comparable skill, experience and reputation, for similar services.” Rowe, 472 So. 2d at 1151; see also Smith v. School Bd. of Palm Beach County, 981 So. 2d 6, 9 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D2791a].

Ms. Driggers is an attorney based in Tallahassee, Florida with fifteen (15) years of experience whose career has focused in the area of Personal Injury Protection (“hereinafter PIP”) litigation. Ms. Driggers’ career has included both the prosecution of and defense against such claims. With regard to PIP issues, Ms. Driggers has testified before the Florida Legislature, participated in legislative committee discussions, assisted in the drafting of PIP legislation, written articles, and given speeches. Since March of 2008, in addition to her private practice, Ms. Driggers has served as Assistant General Counsel to the Florida Chiropractic Association, providing legal opinions and directives as well as expert assistance on PIP issues to its members. Currently, Ms. Driggers is involved in two federal PIP-related class action lawsuits against Blue Cross Blue Shield and Aetna insurance companies.

Ms. Driggers recently received an hourly rate in the Leon County Court of $350.00 as the attorney for the Plaintiff in a PIP case. Additionally, as late as seven (7) to eight (8) years ago, the Seminole County Court in a PIP suit awarded Ms. Driggers a fee based on an hourly rate of $325.00. Ms. Driggers requests a rate in this case of between $375.00 and $400.00.

In support of her claim for attorney’s fees, Ms. Driggers called Kevin Weiss, Esquire, to give an opinion as to a reasonable fee in this case. Mr. Weiss is a highly qualified, experienced and reputable attorney practicing in central Florida. Although not currently focusing his practice in the area of PIP litigation, Mr. Weiss has substantial experience and knowledge in the area. In addition, Mr. Weiss is very familiar with Ms. Driggers’ skills and reputation as he “cut his teeth” litigating PIP claims against Ms. Driggers.

Mr. Weiss determined that an hourly rate of $400.00 is reasonable for the services rendered by Ms. Driggers in this case. Admittedly, Mr. Weiss was unable to present testimony regarding specific rates charged by local attorneys in PIP cases.² However, Mr. Weiss spoke to several local lawyers and posted a request on a “list-serve” for the Florida Justice Association seeking information in this regard with no success. The reasonable inference to be drawn is that there are likely few attorneys in the Polk County area litigating PIP cases on a regular basis. This inference is supported by other evidence presented that the names of several out-of-county attorneys appear on the clerk’s rolls as having filed notices in PIP cases.

Notwithstanding the foregoing, Mr. Weiss was able to point the Court to two cases which are helpful in determining a customary rate in this jurisdiction. First, Mr. Weiss referenced Jonalisa v. USAA Casualty Insurance Co., et al., Order Granting Attorney’s Fees, 2007SC-008965 (Fla. Polk Cty. Ct. February 26, 2010), a case involving a dispute over unpaid automobile glass claims. In that case, it was determined that $400.00 per hour was a reasonable rate for the services of the prevailing plaintiff’s lawyer. While the Defendant attempts to distinguish the type of representation involved in Jonalisa from the present case in that the underlying claim in Jonalisa was purely contractual, the Defendant fails to recognize that the current case, also based on an underlying contract, involves the added complexity associated with the statutory labyrinth under which PIP claims are brought. Further, the Defendant also fails to recognize that it is the reasonable rate for similar services, not necessarily the same services, that this Court must be guided by. The Court finds that the legal services provided in Jonalisa are similar to those provided in the instant case.

Second, Mr. Weiss points the Court to Fortune Insurance Co. v. Randall, 6 F.L.W. Supp. 373a (Fla. 10th Cir. Ct. March 31, 1999),³ in which the Tenth Circuit Court, sitting in its appellate capacity, affirmed an order of the Polk County Court finding that $300.00 per hour was a reasonable hourly rate for a prevailing plaintiff’s attorney in a PIP case.⁴ The Court assumes that the hourly rate awarded in Randall represented the top end of the scale in 1999 for a highly experienced, reputable and skilled attorney in a Polk County PIP case. It is apparent to this Court that if such a rate was reasonable in this county nearly twelve years ago, then $400.00 is a reasonable rate today.

The Defendant’s expert witness, Amanda Reher, Esquire, opined that $275.00 is a reasonable hourly rate in this case. In preparing to give her opinion, Ms. Reher conducted an online telephone directory search which she indicated resulted in twenty printed pages of attorneys available to represent plaintiffs in Polk County PIP suits. These twenty pages were never introduced in evidence, nor were the details of the search results elucidated. It is far from clear whether Ms. Reher’s online search indicated whether local attorneys were available and whether any of the attorneys available possessed the same skill, experience and reputation as Ms. Driggers.

Ms. Reher based her opinion further upon her conversations with two attorneys — one from Polk County and one from Hillsborough County. Ms. Reher indicated that the Polk County attorney would charge $275.00 per hour in this type of case, and that the Hillsborough County attorney would charge $250.00 per hour. No evidence was presented as to the skill, experience and reputation of the Hillsborough County attorney. The only reliable evidence presented as to the Polk County attorney was that he had been in practice since 2003 and was willing to handle PIP claims for plaintiffs. Even so, the evidence presented by the Defendant, except for the ultimate opinion of its expert, supports Ms. Driggers’ position. The fact that an attorney who has been practicing half the time as the Plaintiff’s lawyer would charge $275.00 per hour is entirely consistent with the opinion given as to a reasonable hourly rate for Ms. Driggers, especially in light of her unique qualifications and reputation.

The Court finds that the opinion of the Plaintiff’s expert witness is reliable and that an hourly rate of $400.00 is consistent with the market rate in Polk County for attorneys of comparable skill, experience and reputation providing similar legal services. Notwithstanding this finding, the Court is aware that, while Ms. Driggers testified that her services are worth as much as $400.00 per hour, she requests no more than $375.00 per hour in her written motion. The Court is compelled to award no more relief than that requested in the pleadings, and finds that, in this case, the reasonable hourly rate is $375.00.

D. CONTINGENCY RISK MULTIPLIER

“[I]n personal injury cases, ‘[w]hen the prevailing party’s counsel is employed on a contingent fee basis, the trial court must consider a contingency risk factor when awarding a statutorily-directed reasonable attorney fee.’ ” Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828, 831 (Fla. 1990)(quoting Rowe, 519 So. 2d at 1151)). In determining whether to apply a contingency risk multiplier, this Court must determine:

(1) whether the relevant market requires a contingency fee multiplier to obtain competent counsel; (2) whether the attorney was able to mitigate the risk of nonpayment in any way; and (3) whether any of the factors set forth in Rowe are applicable, especially, the amount involved, the results obtained, and the type of fee arrangement between the attorney and [her] client.

Quanstrom, 555 So. 2d at 834. “Evidence of these factors must be presented to justify the utilization of a multiplier.” Id. If, after such evidence is presented, the Court determines that the prevailing party’s chance of success was greater than 50% at the outset, it may apply a multiplier of 1 to 1.5. Id. If the chance of success was even at the outset, the Court may apply a multiplier of 1.5 to 2.0. Quanstrom, 555 So. 2d at 834. If the chance of success was less than 50% at the outset, the Court may apply a multiplier of 2.0 to 2.5. Id. Finally, the Court is mindful that, even if evidence is presented justifying the utilization of a multiplier, the application of the multiplier is not mandatory. Id. at 831.

There is an apparent split of authority in Florida as to what type of proof must be adduced to establish that a plaintiff would have difficulty finding competent counsel without the possibility of a multiplier. The First District Court of Appeal, in Massie v. Progressive Exp. Ins. Co., held that expert testimony indicating that a plaintiff would have difficulty in obtaining competent counsel without the possibility of a multiplier is competent proof of the first factor in the Quanstrom analysis. 25 So. 3d 584 (Fla. 1st DCA 2009) [34 Fla. L. Weekly D2364b](citing McCarthy Bros. Co. v. Tilbury Constr. Inc., 849 So. 2d 7, 10 (Fla. 1st DCA 2003) [28 Fla. L. Weekly D736b]). On the other hand, it appears that the Fifth District Court of Appeal requires testimony from the plaintiff himself demonstrating that that he actually confronted difficulty finding a competent attorney who would take his case without the possibility of a multiplier. Progressive Exp. Ins. Co. v. Schultz, 948 So. 2d 1027 (Fla. 5th DCA 2007) [31 Fla. L. Weekly D2610a].

If Schultz controls the Court’s decision, it would be bound to find that a contingency risk multiplier is not justified in this case. This is so because the testimony of the Plaintiff’s office manager, Mr. Tucker, does not establish that the Plaintiff confronted difficulty in finding a lawyer who would accept its case without the possibility of a multiplier. Rather, the testimony indicated that Plaintiff contacted only three lawyers, one of whom is a corporate attorney, one who had undertaken to represent the insured in a suit related to the instant case, and the president of the Florida Chiropractic Association who referred the Plaintiff to Ms. Driggers. The difficulty for the Plaintiff, if any, in finding a lawyer was the result of a general unwillingness or inability to take the case rather than any specific refusal to take the case without the possibility of a multiplier. Under Schultz, therefore, the Plaintiff has failed to carry its burden with regard to the first factor in the Quanstrom analysis.

Notwithstanding the foregoing, this Court finds that the opinion of the First District in Massie is rooted in sound logic and believes that applying the requirements of the Fifth District in Schultz could potentially have a penalizing affect on otherwise competent and deserving counsel. To illustrate, if a plaintiff opens the phonebook and, by chance, on his first call is connected with an attorney who would take his case without the possibility of a multiplier, but later decides to retain more competent counsel who would not take the case without such a possibility, then, under Schultz, the plaintiff’s attorney would be penalized even if the vast majority of attorneys would, in fact, require the possibility of a multiplier. There will always be an attorney, many times the less competent, who will take a case for less. That he, by luck of the draw, should represent the benchmark undermines the core principle underlying Rowe and Quanstrom — encouraging competent counsel to take on cases involving risk of non-payment or inadequate payment, thereby providing Floridians with greater and more effective access to the courts than they would otherwise enjoy. For the foregoing reasons, and because there is no controlling precedent in the Second District, this Court elects to decide this case based upon an application of Massie. See Pardo v. State, 596 So. 2d 665 (Fla. 1992).

In the present case, the Court is satisfied that the testimony of Mr. Weiss along with the Jonalisa and Randall cases demonstrate that in PIP cases and similar cases, the relevant market requires a multiplier to obtain competent counsel of Ms. Driggers caliber due to the risk of nonpayment, the desirability of taking on PIP cases, the complexity of the PIP statute, and the relatively small amounts at issue in PIP litigation. The Defendant offers little to rebut the Plaintiff’s position in this regard except the representations of the two attorneys from Polk and Hillsborough Counties discussed previously — representations which did not include an indication one way or the other as to whether a multiplier was required.

With regard to risk mitigation, it is clear that Ms. Driggers reasonably did all she could to recover for her client without filing suit. Ms. Driggers, knowing that the Defendant had completely denied the underlying claims in this suit twice before her services were solicited, immediately sent a pre-suit demand in an effort to resolve the dispute without litigation. When again, the Defendant refused payment for any of the claims, Ms. Driggers had no other reasonable course of action except to institute the present suit.

Finally, as to other Rowe factors, the evidence establishes that the fee arrangement between Ms. Driggers and the Plaintiff was a pure contingent fee arrangement, that the underlying claims were relatively small — approximately $3,250.00 — and that the Plaintiff recovered the full amount demanded plus interest when the Defendant confessed judgment. Therefore, the relevant Rowe factors are present justifying the application of a multiplier.

The Court must next consider the likelihood of success on the part of the Plaintiff at the outset of the case. Quanstrom, 555 So. 2d at 834. The central issue in the underlying suit revolved around the adequacy of the Plaintiff’s submission of its Standard Disclosure and Acknowledgment (hereinafter “SD&A”). Ms. Driggers was retained by the Plaintiff in this case in October of 2008. At that time, she was informed by the Plaintiff’s office manager and claims specialist, John Tucker, that he had submitted an SD&A form with attached medical bills to the Defendant, but that the Defendant refused to pay. Ms. Driggers was informed that the Plaintiff resubmitted the SD&A with the billing a second time, believing that there must have been a mistake on the Defendant’s part, but that the claim was again denied. Ms. Driggers learned that the Defendant advised Mr. Tucker that the claim was denied because the treating physician included two items of treatment on the SD&A which, due to a clerical error, were not included in the attached billing. Upon receiving the case, Ms. Driggers filed a pre-suit notice in an effort to resolve the claim with the Defendant, however, the claim was again denied.

At the time Ms. Driggers was retained in this case, issues surrounding the denial of claims based upon perceived errors and omissions in the SD&A submissions were vigorously contested. Ms. Driggers was aware that insurance companies, including the Defendant, were denying claims in toto if there was any discrepancy in the submission. The insurance companies took the position that a properly (if not perfectly) completed SD&A form is a condition precedent to their obligation to pay PIP claims. See generally Florida Medical & Injury Center, Inc. v. Progressive Exp. Ins. Co., 29 So. 3d 329 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D215b]. The position taken by the insurance companies generated substantial litigation across the state, resulting in divergent and conflicting opinions in the county and circuit courts. Florida Medical, 29 So. 3d at 331. Until Florida Medical, therefore, the merits of the respective parties’ positions were all but clear. Mr. Weiss’ opinion that the Plaintiff had a 50% chance of success at the time Ms. Driggers accepted the case is well-supported by the history surrounding the legal issue presented in this case.

The Defendant attempts to distinguish the Plaintiff’s case from those contemplated by Florida Medical. Specifically, the Defendant points out that the SD&A submitted in this case reflected all of the services provided on the initial visit⁵ and was attested to by the assignor and the treating physician. Therefore, according to the Defendant, this case was a “winner” from the outset.⁶ However, because the Defendant denied the entire claim for all services listed on the SD&A, not just those for which there was no accompanying billing, it was reasonable to conclude that the claim was denied based on the then prevailing industry-wide position that a perfectly drafted SD&A is a condition precedent to the obligation to pay anything. The Court finds that this case falls into the category of cases contemplated by Florida Medical, that the Plaintiff had a 50% chance of success at the time she accepted the case and that application of a multiplier is appropriate.

In determining whether to apply a multiplier at the high or low end of the permissible range, the Court is guided by the apparent fact that the real dispute in this suit was not related to the legitimacy of the underlying claims. After all, the Plaintiff in this case substantially complied with the SD&A requirements of the PIP statute as the vast majority of services listed on the Plaintiff’s SD&A were documented in the billing. Despite such substantial compliance, the Defendant refused to pay for any of the services, not merely those unsupported by the billing. As such, for the Defendant, this case reached beyond the merits of the underlying claim. This case became part of a quest to set precedent favorable to the Defendant’s interpretation of the SD&A provisions of the PIP statute. Given the “bold”⁷ position of the insurance companies on this issue, a reasonable attorney possessed of all the information surrounding the SD&A controversy at the time this representation was accepted would be justified in predicting that the Defendant would likely have gone “toe-to-toe over the issue and . . . brought to bear all of their skill and resources to try to win the day.” McGowan v. King, Inc., 661 F.2d 48, 51 (5th Cir. 1981)(quoted in State Farm Fire & Cas. Co. v. Palma, 555 So. 2d 836, 838 (Fla. 1990)). The risk associated with taking on such a purpose-driven opponent justifies a multiplier of 2.0. While the attorney fee in this case will exceed the underlying claim by nearly ten times, the fee is warranted under the circumstances. Cf. Palma, 555 So. 2d 836.

E. COSTS

The parties partially stipulate to the taxation of costs in this case in the amount of $652.70 which stipulation is accepted by the Court. However, the parties disagree that the Defendant is responsible for $200.00 associated with the court reporter’s services in taking the deposition of the Defendant’s expert witness Amanda Reher, Esquire. The Court finds, after review of the court file, that the cost of the court reporter was necessary and reasonable given the apparent difficulty on the part of the Plaintiff in obtaining information from the Defendant regarding its position as to a reasonable attorney fee in this case. The Court therefore finds that reasonable and necessary costs in this case are $852.70.

F. PREJUDGMENT INTEREST

The Plaintiff is entitled to prejudgment interest of six percent (6%) on the attorney’s fees and costs of the underlying suit from the date the claims were paid — May 12, 2010 — until entry of the final judgment — October 11, 2010 — or 153 days. Quality Eng’g, Inc. v. Higley South, Inc., 670 So. 2d 929 (Fla. 1996) [21 Fla. L. Weekly S141a]. As to costs, the Court finds that the portion of costs relating to expert witness fees and expenses associated with the deposition of Ms. Reher are not subject to an award of prejudgment interest as they were not liquidated at the time the Plaintiff became entitled to judgment on the underlying claim. See Boulis v. Florida Dept. of Transp., 733 So. 2d 959 (Fla. 1999) [24 Fla. L. Weekly S150c].

G. EXPERT WITNESS FEE AND TRAVEL

Mr. Weiss contracted with Ms. Driggers to provide opinion testimony regarding a reasonable attorney fee in this case. Mr. Weiss testified that it was an inconvenience for him to be away from his practice, that he expected to be paid for his services to the Plaintiff, and that he will be submitting an invoice. See Travieso v. Travieso, 474 So. 2d 1184 (Fla. 1985); Stokus v. Phillips, 651 So. 2d 1244 (Fla. 2d DCA 1995) [20 Fla. L. Weekly D627c]; Mangel v. Bob Dance Dodge, Inc., 739 So. 2d 720 (Fla. 5th DCA 1999) [24 Fla. L. Weekly D2106a].

As previously determined, Kevin Weiss, Esquire, the Plaintiff’s expert witness, is a highly qualified, experienced and reputable attorney practicing in the central Florida area. Mr. Weiss engages primarily in an appellate practice, however, he is very familiar with PIP-related issues. In fact, Mr. Weiss served as appellate counsel for the insureds in Florida Medical, 29 So. 3d 329, which directly addressed the central issue in the present case. Mr. Weiss has been permitted to give an opinion as to reasonable attorney fees in Polk County in Jonalisa. See Order Granting Attorney’s Fees, 53-2007SC-008965. Finally, Mr. Weiss is exceptionally well-acquainted with the qualifications of the Plaintiff’s attorney in this case, having litigated PIP claims against her in the past.

The Court finds that Mr. Weiss’ experience, qualifications and reputation are on par with those of Ms. Driggers. The Court further finds that a reasonable hourly rate for his services in preparing to give an opinion and in attending and testifying at the fee hearing is $400.00 per hour. Such a rate is supported by the findings of the Honorable Reinaldo Ojeda in Jonalisa and the Defendant did not dispute this rate at the hearing.

Mr. Weiss reasonably expended twelve (12) hours preparing to testify in this case, including reviewing the Plaintiff’s file, engaging in research via telephone and the internet, and conducting relevant legal research. In addition, Mr. Weiss’ attendance and testimony at the fee hearing consumed an additional three and seven-tenths (3.7) hours of his time. Finally, Mr. Weiss spent three (3) total hours of travel time to and from the fee hearing. The Defendant did not dispute that the time, other than travel time, was reasonable and necessary in the prosecution of the Plaintiff’s claim for attorney fees.

With regard to expert travel time, the parties agree that current guidelines announced by the Florida Supreme Court indicate that the prevailing party should not be awarded costs for time associated with an expert witness’ travel. See In re Amendments to Uniform Guidelines for Taxation of Costs, 915 So. 2d 612 (Fla. 2005) [30 Fla. L. Weekly S797a]; see also Plaintiff’s Memorandum of Law in Support of Expert Travel Time, p. 2; Defendant’s Memorandum of Law in Objection and Response to Plaintiff’s Memorandum of Law in Support of Expert Travel Time Filed during Attorney Fee Hearing, p. 2. However, the parties in their supplemental briefing on the issue also agree that the guidelines are intended to be advisory only and that application of them should not work to prejudice the rights of litigants. See Plaintiff’s Memorandum of Law in Support of Expert Travel Time, p. 2; Defendant’s Memorandum of Law in Objection and Response to Plaintiff’s Memorandum of Law in Support of Expert Travel Time Filed during Attorney Fee Hearing, p. 2. However, “[u]nder the guidelines, it is the burden of the moving party to show that all requested costs were reasonably necessary either to defend or prosecute the case at the time the action precipitating the cost was taken.” In re Amendments to Uniform Guidelines for Taxation of Costs, 915 So. 2d at 614.

The Court recognizes that the Plaintiff sought to provide the Court not only with adequate expert testimony regarding a reasonable attorney fee, but the most probative, given Mr. Weiss’ intimate personal knowledge of Ms. Driggers’ skill, experience and reputation. However, commensurate with this Court’s duty to “exercise [its] discretion in a manner that is consistent with the policy of reducing the overall costs of litigation and of keeping such costs as low as justice will permit,” In re Amendments to Uniform Guidelines for Taxation of Costs, 915 So. 2d at 614, this Court declines to award travel time in this case.

Based upon the foregoing, it is hereby:

ORDERED AND ADJUDGED

1. The Plaintiff’s Motion for Attorney’s Fees and Costs is GRANTED.

2. Plaintiff, shall have and recover from the Defendant, USAA Casualty Insurance Company, for the services of its attorney, Kimberly A. Driggers, Esquire, a reasonable attorney fee of $32,475.00 (43.3 hours x $375.00 x 2.0), and costs of $652.70 together with prejudgment interest thereon of $833.18 (.06/365 x 153 x $33,127.70), for a subtotal of $33,960.88, plus additional costs in the amount of $200.00, for a total of $34,160.88 which shall bear interest at the rate of 6% per annum, for which sum let execution issue.

3. Plaintiff shall have and recover from the Defendant, USAA Casualty Insurance Company, for the services of its expert witness, Kevin Weiss, Esquire, a reasonable fee in the amount of $6,280.00 (15.7 hours x $400.00) which shall bear interest at the rate of 6% per annum, for which sum let execution issue.

THE COURT HEREBY CERTIFIES the following question to the Second District Court of Appeal as one of great public importance and one that will affect the uniform administration of justice:

In an action involving a claim for a statutorily directed attorney fee under Florida Statutes section 627.428 (1992), can expert testimony alone constitute sufficient proof under Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990), on the issue of whether the relevant market requires a contingency fee multiplier to obtain competent counsel?

__________________

¹Rules Regulating the Florida Bar 4-1.5.

²Insofar as the Defendant claims that the opinion of Mr. Weiss does not reflect prevailing Polk County standards, it indirectly concedes that counties surrounding Polk indicate comparable standards. See Defendant’s Memorandum of Law in Objection and Response to Plaintiff’s Memorandum of Law in Support of Expert Travel Time Filed during Attorney Fee Hearing, pp. 3-4 (“While Polk County may not be as large as Tampa or Orlando, Plaintiff’s portrayal of Polk County of [sic] being devoid of competent attorneys to represent Plaintiff or act as its expert in a PIP matter is simply not supported by common sense or the evidence in this matter. Polk County is a vibrant, thriving city [sic] with all the sophistication of any large city in Florida.”).

³At the hearing, Mr. Weiss, without referencing the citation, indicated to the Court that a search of Florida Law Weekly Supplement revealed that Jerri Blair, Esquire, received an award of attorney’s fees at the rate of $275.00 per hour in a PIP case in 1999. A simple search of that publication revealed the case cited above. It should be noted that the hourly rate awarded was $300.00, rather than $275.00 as testified to.

⁴Language from the County Court’s order is cited in the opinion: “[T]he hourly rate of $300.00 is reasonable, taking into consideration the circumstances and facts of the case, the experience, certifications, and reputation of Plaintiff’s attorney and the rate charged within the legal community for services and representation of this nature.” Randall, 6 Fla. L. Weekly Supp. 373a.

⁵The evidence actually reflected that the claims adjuster in this case also denied the claim because the Plaintiff billed for “electronic stimulation” that was not listed on the SD&A. However, it is not clear that Ms. Driggers was aware of this at the time the case was accepted.

⁶The Defendant’s position may be fairly characterized as an assertion that the litigation in this case resulted from a simple error on the part of the Defendant in denying the claim. Such a position is completely undermined by Plaintiff’s exhibit no. 2, which demonstrates that the claim in this case was denied based upon a determination that the SD&A was flawed. The Court had initially believed that Ms. Driggers’ testimony regarding the Defendant’s alleged refusal to pay the claim until six months after Florida Medical might be relevant on this issue. However, upon further consideration, the Court sustains the Defendant’s objection to this testimony because insufficient detail was presented as to the reasons behind the failure to pay, and therefore, the testimony is not relevant. The Court expressly rejects consideration of this testimony in reaching its decision in this case.

⁷Florida Medical, 29 So. 3d at 333.

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