19 Fla. L. Weekly Supp. 385a
Online Reference: FLWSUPP 1905HERNInsurance — Attorney’s fees — Insurer is entitled to award of attorney’s fees as sanction for medical provider’s dilatory tactics and failure to comply with court orders
STAND-UP MRI OF MIAMI, INC., (Xiomara Hernandez, Patient), Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Defendant(s). County Court, 8th Judicial Circuit in and for Broward County. Case No. 08-017710 COCE 56. January 9, 2012. Linda R. Pratt, Judge. Counsel: Andrew J. Weinstein, Coral Springs, for Plaintiff. Justin Cincola, Miami, for Defendant.
ORDER AWARDING ATTORNEY’S FEES AND COSTS
THIS CAUSE is before the Court on Plaintiff’s motion for an award of attorney’s fees and costs pursuant to F.S. 627.428 following Defendant’s “confession of judgment,” and Defendant’s motion for attorney’s fees and costs and request for an offset against Plaintiff’s award, based upon Plaintiff counsel’s violation of court orders and bad faith conduct.
A brief history of this case is necessary to put the motions in context. Plaintiff filed this small claim case in October of 2007. Over Plaintiff’s objection, the Court granted Defendant’s motion to invoke the Florida Rules of Civil Procedure. Plaintiff initiated discovery. The case moved slowly. Discovery requests were exchanged and Defendant filed its answer and affirmative defenses in October, 2008. The file was then transferred into this division for jury trial. The case was noticed for jury trial in May, 2009, and the Court ordered arbitration. A final arbitration judgment in favor of Plaintiff was entered in October, 2009, but was subsequently vacated on Defendant’s motion. Defendant filed a confession of judgment in March, 2010. Defendant never contested Plaintiff’s entitlement to fees. Plaintiff is entitled to attorney’s fees through the date of the confession of judgment.
The Court finds that there was nothing unusual about Plaintiff’s claim in this case. Plaintiff seeks a total of 105.9 hours at rates from one hundred twenty-five dollars ($125.00) per hour for paralegal time to four hundred dollars ($400.00) per hour for Mr. Weinstein’s time. Defense counsel’s expert reduced the time to a total of seventy-five (75) hours. The Court has considered the evidence and the factors in the Rowe & Quanstrom cases, and the Rules Regulating the Florida Bar, and is familiar with the attorneys who litigated this case.
Based upon the foregoing the Court finds that the following amounts of time at the following rates were reasonably spent in this case:
Andrew Weinstein 71.6 hours @ $ 400.00 per hour
Associates time 18.5 hours @ $ 275.00 per hour
Paralegal time 2.6 hours @ $ 125.00 per hour
This yields a lode star of thirty-four thousand fifty two dollars and fifty cents ($34,052.50). The application of a contingent fee multiplier is not warranted.
Plaintiff is entitled to costs of seven hundred fifty-eight dollars and forty-five cents ($758.45) plus an expert witness fee of four thousand eight hundred dollars ($4,800.00) based upon twelve (12) hours at four hundred dollars ($400.00) per hour for attorney Katz’s time.
The Court has also considered evidence of the amount of attorney’s fees and costs to which Defendant is entitled pursuant to the Court’s order of July 15, 2011. This claim is more complicated.
On March 26, 2010, following Defendant’s confession of Judgment, Plaintiff filed a motion to tax attorney’s fees and costs. The Court entered an order on May 26, 2010, requiring Plaintiff to serve Defendant with attorney time sheets thirty days prior to hearing and set a hearing on the motion for September 14, 2010. Plaintiff’s counsel did not timely serve his time sheets, nor did he seek additional time to do so, but instead, he sought to discover Defendant’s time records, to which Defendant objected.1 Plaintiff’s counsel’s failure to provide time sheets required the fee hearing to be cancelled, and in November, 2010, the fee hearing was reset to February 9, 2011. The Court entered a second order requiring Plaintiff’s counsel to produce time sheets. It should be noted that the same failure of plaintiffs counsel to produce time records was occurring in numerous other cases with the same Defendant during this time period.2 Plaintiff’s counsel has subsequently claimed that he suffered a major computer software malfunction which prevented his compliance with court orders. However, at no time in this case did Plaintiff’s counsel timely advise the Court of this problem.3 Instead, Plaintiff’s counsel ignored the court orders, caused two hearings to be scheduled and cancelled after they had been scheduled for months, wasted the Court’s time, and caused Defendant unnecessary litigation expense and damages in the form of accrual of interest on the fee claim. This dilatory conduct and noncompliance with court orders caused the prior judge in the case to sanction Plaintiff’s counsel five thousand dollars ($5,000). However, because the Court summarily imposed the sanction without evidence of the amount of Defendant’s fees and expenses to support the sum awarded, Plaintiff moved to vacate the order. Following a hearing on the motion May 13, 2011, this Court vacated the order only as to the amount on July 15, 2011.4
A hearing was held on November 30, 2011 to determine the amount of fees to be awarded Defendant, at which time Defendant’s counsel, Justin Cincola, presented his time records and testimony of a fee expert. Defense counsel’s time records reflect 45.8 hours spent on this case from July 23, 2010 through September 8, 2011, at a rate of two hundred fifty dollars ($250.00) per hour. Counsel testified the time spent fell into three categories:
1.) Time spent prior to the February 9, 2011 hearing to compel Plaintiff’s compliance with court orders
2.) Time spent litigating entitlement to fees
3.) Time spent litigating the amount of fees
He estimated approximately 10.8 hours were spent compelling production of time sheets.
Defendant’s expert, Sarah Engel, testified that defense counsel reasonably spent 37.8 hours as a result of Plaintiffs conduct because, among other reasons,
1.) Defense counsel had to be prepared to go forward with the February 9, 2011 fee hearing in case the judge denied the request to continue it; and
2.) Defense counsel had to spend time to document Plaintiff counsel’s bad faith conduct in defense of Defendant’s entitlement to fees as a sanction because Plaintiff was trying to get the order for sanctions completely vacated.
Ms. Engel testified that two hundred fifty dollars ($250.00) per hour is an appropriate rate for Mr. Cincola’s time, given his three years plus as an attorney and intern for United Automobile Insurance Company, and the quality of his work. By comparison Plaintiff’s counsel billed his associate, Ms. Myers, who was admitted to the Bar in 2007, at two hundred seventy-five dollars ($275.00) per hour.
Plaintiff’s expert, Mr. Katz, testified that assuming defense counsel’s time spent both pre and post the February 9, 2011 hearing were compensable, the reasonable amount of time spent would be 25.5 hours, which includes approximately 3.7 hours to obtain Plaintiffs time sheets. He felt a reasonable rate for defense PIP work for an associate would be $85.00 to $165.00 per hour, or $150.00 to $200.00 per hour for other commensurate work.
The Court has already found that Defendant is entitled to the award of attorney’s fees and costs as a result of Plaintiff counsel’s conduct following the filing of his motion to tax fees and costs as a sanction for violation of court orders and pursuant to Moakley v. Smallwood, 826 So.2nd 221 (Fla. 2002) [27 Fla. L. Weekly S175b], and Mercer v. Raine, 443 So.2nd 944 (Fla. 1983). Specifically, Plaintiff’s counsel ignored the court’s preliminary fee order of May 26, 2010. That order prohibited attorneys’ fee discovery without court order and required Plaintiff’s counsel to serve time sheets thirty (30) days prior to hearing. Plaintiffs counsel propounded discovery requests to defense counsel for his time records without leave of Court all the while not disclosing to the Court or opposing counsel the computer problem preventing him from furnishing his own time records. He then belatedly sought leave to obtain discovery from Defendant and caused the last minute cancellation of the first fee hearing because he hadn’t produced his records. When the fee hearing was reset for February 9, 2011, Plaintiff’s counsel still did not advise the Court of his problems producing his records. Although the hearing of February 9, 2011 was noticed on November 5, 2010, it wasn’t until January 27, 2011 that Plaintiff’s counsel moved for extension of time to comply with the Court’s order of November 1, 2010, by which time Plaintiff’s counsel’s time sheets were two months overdue and defense counsel had filed a motion to compel and continue the hearing and motion for sanctions, and an emergency motion. The Court finds that as a result of Plaintiff’s counsel’s failure to comply with court orders, defense counsel spent 10.8 hours for which Defendant should be compensated up to February 9, 2011.
Following entry of the Court’s sanction order of February 9, 2011, Plaintiff’s counsel sought to have the order vacated as clearly erroneous by filing a 57.105 motion and threatening legal action if Defendant refused to agree. Plaintiff’s counsel argues that Defendant is not entitled to be compensated for time its attorney spent defending the February 9, 2011 order or preparing for a hearing on Plaintiff’s motion to vacate it on May 13, 2011. The Court would agree if Plaintiff had only sought to vacate the amount of the award and not contested entitlement to fees. However the order was not clearly erroneous as to entitlement. Therefore the Court finds that some of the time spent by defense counsel prior to the May 13th hearing was reasonably spent to protect his client’s right to be compensated for damages caused by Plaintiff’s sanctionable conduct. This would include travel time to the hearing on May 13, 2011.
Following the hearing on May 13, 2011, the Plaintiff was to submit an order consistent with the Court’s ruling at the conclusion of the hearing. Plaintiff did not do so timely so defense counsel submitted a proposed order to Plaintiff’s counsel. Plaintiff’s counsel objected and claimed defense counsel’s order was totally erroneous. Plaintiff’s counsel then submitted two proposed orders directly to the Court without furnishing them first to defense counsel. His orders were contrary to the Court’s ruling in that neither clearly stated Defendant’s entitlement to fees. Thus, the Court finds Plaintiff was still contesting Defendant’s entitlement to fees, even after the Court had clearly orally ruled at the hearing. Defendant is entitled to compensation for time spent to obtain entry of an order accurately reflecting the court’s ruling because Plaintiff failed to do it. The Court further finds that Defendant’s counsel is entitled to be compensated for a reasonable amount of time spent litigating the amount of attorney’s fees, Condren v. Bell, 853 So.2nd 609, (Fla. 4 DCA 2003) [28 Fla. L. Weekly D1766b].
The Court finds based on its review of the entire record, evidence, arguments and case law that Defendant is entitled to the reasonable time of twenty-eight (28) hours. Based upon the quality of counsel’s work the Court finds that he should be compensated at the higher end of the pay rates for litigation associates of three years of experience. See Broward Marine, Inc. v. Palm Beach Polo Holdings, 902 So. 2nd 855 (Fla. 4DCA 2005) [30 Fla. L. Weekly D1165b]. The Court finds two hundred twenty-five dollars ($225.00) per hour is appropriate.
Therefore the Court finds that Defendant is entitled to six thousand three hundred dollars ($6,300) in attorney’s fees on its motion. In addition, Defendant incurred costs of Ms. Engel’s time at three hundred twenty-five dollars ($325.00) per hour for 6.7 hours and hearing costs of the February 9, 2011 hearing totaling two hundred five dollars and seventy cents ($205.70) for a total award of costs of two thousand three hundred eighty-three dollars and twenty cents ($2,383.20). The total of Defendant’s fees and costs to be set off against Plaintiff counsel’s fee award is eight thousand six hundred eighty-three dollars and twenty cents ($8,683.20). Based on the foregoing it is ordered that Plaintiff shall recover from Defendant the sum of thirty thousand nine hundred twenty-seven dollars and seventy-five cents ($30,927.75) plus interest from the date of confession of judgment on March 29, 2010. However, pursuant to the Court’s order of July 15, 2011 interest on this award is abated from September 14, 2010 until September 20, 2011, making the total prejudgment interest the sum of one thousand two hundred eighty-eight dollars and sixty-six cents ($1,288.66). Therefore, Plaintiff shall recover from Defendant the sum of thirty-two thousand two hundred sixteen dollars and forty-one cents ($32,216.41) for which let execution issue.
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1Defendant was concerned that Plaintiff would use Defendant’s records to recreate Plaintiff’s records.
2See case numbers 06-007393 COCE (56), 08-001883 COCE (53), 05-019706 COCE (52), 08-001877 COCE (50), 06-001157 COCE (51), 07-009794 COCE (50), 07-001266 COCE (51), 09-001019 COCE (55), 07-009365 COCE (56), 09-003144 COCE (56), 06-002468 COCE (55)
3An affidavit describing the problem was not filed until February 22, 2011. The Court notes that the affidavit does not state when the computer problem started in 2010, but mentions dates in late December 2010 when attempts were made to fix the problem. This begs the question of why time sheets couldn’t be produced in May 2010.
4The prior judge granted Plaintiff’s motion for recusal which was filed simultaneously with Plaintiff’s motion to vacate the order for sanctions.
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