20 Fla. L. Weekly Supp. 702b
Online Reference: FLWSUPP 2007GRIMInsurance — Personal injury protection — Attorney’s fees — Amount — Thirty hours is not reasonable number of hours expended for case that was settled prior to initial pre-trial conference and before discovery commenced — Contingency risk multiplier of 1.0 is appropriate where medical provider’s counsel opined at commencement of case that chance of recovery was excellent, case settled at early stage, and there was nothing rare or extraordinary about case — Expert witness fee, costs and prejudgment interest awarded
BRADLEY H. YOUNG, D.C., a/a/o DENNIS GRIMBLE, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 1st Judicial Circuit in and for Okaloosa County. Case No. 2012-SC-001826 F. April 24, 2013. Jim Ward, Judge.FINAL JUDGMENT FOR ATTORNEY FEES AND COSTS
THIS CAUSE having come before the Court on February 8, 2013, on the Plaintiff’s Motion for Award of Reasonable Attorney Fees, the Court having heard testimony, reviewed and considered the evidence submitted, heard the arguments of the parties, and being otherwise advised in the premises makes the following findings:
1. Prior to this hearing, Defendant confessed the Plaintiff’s attorney’s entitlement to attorney’s fees and costs, Plaintiff having prevailed in this case. In making its determination as to the reasonableness of that fee, the Court relied on the Florida Supreme Court’s decisions in Florida Patients Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), Standard Guaranty Insurance Company v. Quanstrom, 555 So. 2d 828 (Fla. 1990), and the Florida Rules of Professional Conduct Rule 4-1.5 (b).HOURLY RATE
2. Prior to this hearing, the parties stipulated that $300.00 per hour for Mr. Wesley’s work and $95.00 per hour for paralegal work is a reasonable hourly rate.
REASONABLE HOURS
3. The number of legal hours reasonably expended on this litigation was 19.6 hours of legal time for Mr. Wesley and .7 paralegal hours. This number of hours was determined by this Court for the following reasons:
(a) This case was resolved before the Pre-trial conference and before any discovery permitted by the applicable Small Claims rules was commenced. The Defendant did not engage in the defense of this case, but rather had its attorney settle immediately, prior to the initial small claims pre-trial conference.
(b) This Court has reviewed the time sheets provided by Mr. Wesley and considered the testimony of both Plaintiff’s expert, Mr. Heath, and the Defendant’s expert, Mr. Morris, in determining the number of hours reasonably expended by Plaintiff’s Counsel and his paralegal in the prosecution of this matter.
(c) In determining the number of hours that have been “reasonably expended,” the court must 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 (Fla.3d DCA 2009) [34 Fla. L. Weekly D274a].
(d) By Motion, Plaintiff’s counsel had set fee motions for two separate cases to be heard at this hearing. The parties stipulated that both cases are very similar, so that testimony in this matter would be applicable to both. The parties stipulated that both cases are standard IME suspension cases, both settled prior to the initial Small Claims Pre-Trial Conference and before discovery commenced. For each, Plaintiff’s counsel claimed in excess of 30 billed hours, for activities that occurred prior to the commencement of the initial Small Claims Pre-Trial Conference. On cross-examination, Plaintiff’s fee expert, Mr. Heath, admitted that he does not recall ever having billed as many as 30 hours in similar cases he has litigated, for activity prior to the initial Small Claims Pre-trial Conference. In fact, he could not recall having billed as many as 20 hours on cases under similar circumstances. On cross examination, Mr. Heath was presented with his own time records from two other similar IME cases, and he confirmed that he had billed only 7.35 attorney hours and 3 paralegal hours on one of the files, and 4.7 attorney hours on the other file, for work prior to the Small Claims Pre-trial Conferences in those two cases.
LODESTAR
4. By multiplying 19.6, the reasonable number of attorney hours, by $300.00, the stipulated reasonable hourly rate, and by multiplying .7 hours of paralegal time at the agreed rate of $95.00, the Court determines that the “Lodestar” fee is $5,946.50.
CONTINGENCY RISK MULTIPLIER
5. This Court carefully reviewed the applicable Rowe and Quanstrom cases. Based on the language of those cases and considering the facts and circumstances of this case, the Court has determined that a contingency risk multiplier of 1.0 is appropriate.
(a) Plaintiff’s Counsel’s time sheet entry for July 18, 2012, prior to the commencement of the lawsuit, exhibits his belief that he has an “excellent chance of recovery”. Using the Quanstrom analysis, where the chance of recovery is better than even at the onset of litigation, the court should consider a multiplier of 1-1.5. Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828, (Fla. 1990).
(b) Plaintiff’s Counsel previously admitted to this Court, in a prior case, that a multiplier was not appropriate for that case, and the Court did not award a multiplier. Richard Sheldon, D.C. a/a/o Jackson v. USAA, CASE NO.: 2010-SC-002236 (2012). Clearly, there are cases where a multiplier is not appropriate. In fact, the Legislature’s 2013 amendment to the PIP Statute specifically prohibits the award of multipliers, although that amendment is not applicable to this case. However, this case, which was resolved before the initial Small Claims Pre-Trial Conference, is not an appropriate case for the award of a multiplier. Defendants should be encouraged to settle early in litigation, where appropriate, and should be so encouraged, knowing that a multiplier is not necessarily going to be awarded if they do so.
(c) The Supreme Court of Florida emphasized that the principles to be utilized in determining whether a multiplier should be awarded must be flexible to enable the courts to consider rare and extraordinary cases with truly special circumstances. State Farm Fire & Cas. Co. v. Palma, 555 So. 2d 836 (Fla. 1990). The testimony of Plaintiff’s counsel and his expert confirmed there was nothing rare or extraordinary about this case.
6. Therefore, the Court awards Plaintiff’s Counsel an attorney fee of $5,946.50. Based on the parties’ agreement, the Court finds that the Plaintiff is entitled to recover taxable costs totaling $398.60. In addition, Plaintiff incurred costs for Mr. Heath’s services as an expert witness. Mr. Heath testified that he spent 1.8 hours of time reviewing the file, preparing for, and attending the hearing. The hearing took from 1:30pm to 5:00pm, and Mr. Heath traveled to and from Pensacola. The Court finds Mr. Heath’s time was reasonable and a reasonable fee for his services is justified. The Court awards Mr. Heath 5.3 hours at $425.00 per hour, plus 2 hours travel, at $150.00 per hour, for a total expert witness fee of $2,552.50. See Travieso v. Travieso, 474 So.2d 1184 (Fla. 1985); Stokus v. Phillips, 651 So.2d 1244 (Fla. 2d DCA 1995) [20 Fla. L. Weeky D627c].
INTEREST ON FEES AND COSTS
7. Defendant also stipulated to Plaintiff’s Counsel’s entitlement to interest on the award of attorney’s fees and costs. The case law supports this argument. See Inacio v. State Farm Fire & Cas. Co., 550 So. 2d 92, 97 (Fla. 1st DCA 1989); Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So. 2d 929 (Fla. 1996) [21 Fla. L. Weekly S141a]. Plaintiff became the prevailing party and was entitled to reasonable attorney’s fees and costs as of October 5, 2012, when Mr. Rinaman wrote Mr. Wesley agreeing to entitlement to a reasonable attorney fee. Therefore, all attorney’s fees, paralegal’s fees, and taxable costs are subject to an award of prejudgment interest.
Therefore, it is hereby ORDERED that the total judgment for attorney’s fees and taxable costs shall be $6,345.10, plus prejudgment interest, which shall accrue interest at the rate of 4.75% per annum from October 5, 2012. The Court also awards an expert witness fee of $2,552.50 payable to Mr. Heath.
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