20 Fla. L. Weekly Supp. 138a

Online Reference: FLWSUPP 2002STEWInsurance — Automobile — Attorney’s fees — Amount — Contingency risk multiplier of 1.5 is appropriate where insureds experienced difficulty in obtaining competent counsel and counsel was required to expend significant efforts to overcome insurer’s claim that vehicle, which had transponder key, could not have been stolen without insureds’ participation and to overcome challenges to venue and settlement agreement — Costs and expert witness fees awarded

DAMIEN STEWART, individually, TAMEKA STEWART, individually and DAMIEN AND TAMEKA STEWART as Husband and Wife, Plaintiffs, vs. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Defendant. Circuit Court, 13th Circuit Court in and for Hillsborough County, Civil Division. Case No. 11-CA-012517, Division A. November 7, 2012. Honorable Sam D. Pendino, Judge. Counsel: Christopher P. Calkin and Michael B. Reiss, Law Offices of Christopher P. Calkin, P.A., Tampa; and David M. Caldevilla, de la Parte & Gilbert, P.A., Tampa, for Plaintiffs. Sidney M. Crawford and Benjamin L. Crawford, Crawford Law Group, P.A., Lakeland, for Defendant.

FINAL JUDGMENT AWARDING ATTORNEYS’FEES AND COSTS

THIS CAUSE came before the Court for evidentiary hearing on October 30, 2012 concerning the Plaintiffs’ motion for attorneys’ fees and costs. After considering the record, the credibility and weight of the testimony and other evidence presented, the arguments of counsel, and the parties’ proposed orders, and being otherwise fully advised in the premises, the Court makes the following findings of fact and conclusions of law:

1. The Plaintiffs’ motion for attorneys’ fees and costs is hereby GRANTED.

2. The Plaintiffs are entitled to an award of their attorneys’ fees and costs pursuant to Sections 627.428 and 57.041, Florida Statutes, and the Court’s “Order Granting Plaintiffs’ Motion to Enforce Settlement Agreement” dated June 28, 2012, which is incorporated herein by reference.

3. Reasonable Attorney Time and Rates: This Court finds that the reasonable hourly rates and reasonable amount of time expended by the Plaintiffs’ counsel in the above-styled case through June 28, 2012 (i.e., the date of the Court’s order enforcing the parties’ settlement agreement), is as follows:

Time Keeper	Actual Time Billed	Requested Hourly Rate	Reasonable Time Awarded	Reasonable Hourly Rate Awarded	Product
C. Calkin	90.0	$400-450	72.0	$400.00	$28,800.00
M. Reiss	25.8	$400-450	10.0	$400.00	4,000.00
D. Caldevilla	23.1	$495-525	23.1	$525.00	$12,127.50
M. Bray	33.0	$195-225	6.0	$195.00	$1,170.00
S. Levine	4.7	$125	0.0	N.A.
Total Lodestar Figure:	$46,097.50

4. Lodestar Figure: Based on the foregoing, this Court finds that a reasonable “lodestar” figure for the legal services performed by the Plaintiffs’ counsel is $46,097.50.

5. Likelihood of Success: This Court finds that the Plaintiffs’ likelihood of success was approximately even at the outset.

6. Lodestar Adjustment or Enhancement: The greater weight of the evidence supports the application of a lodestar adjustment or enhancement. This was an exceptional case, with a genuine potential for non-recovery. The Plaintiffs’ attorneys were retained pursuant to a contingency fee agreement, and it was difficult to mitigate their risk of non-payment if the claim did not succeed. Moreover, the Plaintiffs experienced difficulty in obtaining competent counsel before retaining the attorneys that represented them in this case, and the possibility of ultimately obtaining a lodestar adjustment or enhancement was an important factor that those attorneys considered in accepting the representation. This and other evidence indicates that the relevant market requires a contingency fee adjustment or enhancement for a party to obtain competent counsel. Further, extraordinary circumstances were present. Among other things, the Defendant contended that, due to the special type of “transponder” key installed by the manufacturer of the Plaintiffs’ car, it was not possible for the Plaintiffs’ car to have been stolen without their participation in the theft. This contention by the Defendant required the Plaintiffs’ counsel to perform significant investigation and consultation with experts to successfully overcome. In addition, the Defendant challenged the venue selected by the Plaintiffs and later claimed that the parties had not entered into a binding settlement agreement, and these positions taken by the Defendant required the Plaintiffs’ counsel to engage in extraordinary efforts to promptly conclude this litigation in order to relieve the Plaintiffs’ financial challenges arising from the Defendant’s refusal to cover the theft of their car. For these and other reasons supported by the greater weight of the evidence, as well as the other factors set forth in Florida Rule of Professional Conduct 4-1.5(b)(1), and relevant case law, including the decisions in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), Standard Guaranty Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990), and State Farm Fire & Casualty Co. v. Palma, 555 So.2d 836 (Fla. 1999), this Court finds that a lodestar adjustment or enhancement factor of 1.5 is appropriate in this case.

7. Total Reasonable Attorneys’ Fees: Based on the lodestar figure of $46,097.50 (see, ¶¶ 3-4), and the lodestar adjustment or enhancement factor of 1.5 (see, ¶¶ 5-6), this Court finds that the amount of $69,146.25 (i.e., $46,097.50 x 1.5) is the reasonable amount of attorneys’ fees to be awarded to the Plaintiffs.

8. Taxable Costs:

A. Costs (Excluding Fees and Attorneys’ Fee Expert Witnesses) — The Court finds the following amounts of costs incurred by the Plaintiffs’ counsel (excluding the fees of their attorneys’ fee expert) through June 28, 2012 (i.e., the date of the Court’s order enforcing the parties’ settlement agreement), were reasonable, necessary, and served a useful purpose:

Item	Actual Costs Incurred	Necessary & Reasonable Amount	Notes
Filing Fee	$400.00	$400.00
Service of Process	$15.00	$15.00
Copy costs ($0.25/page x 106 pages)	$26.50	0.00	Waived
Facsimile ($0.50/page x 12 pages)	$6.00	0.00	Waived
Postage	$69.75	0.00	Waived
Crt. Reporting (6/28/12 Hearing Trans)	$271.20	$271.20
A&K Towing	$650.00	$650.00
A&R Forensic Auto Lab, LLC	$3,000.00	$3,000.00
Auto Damage Experts—Invoice 1197	$858.80	$858.80
Auto Damage Experts—Invoice 1199	$860.00	$860.00
U-Haul Storage	$1,373.50	$686.75	Reduced by 50%
de la Parte & Gilbert, P.A.	$448.38	0.00	Waived
Total Awarded:		$6,741.75

B. Fees of Attorneys’ Fee Expert Witness — The Court concludes that the Plaintiffs are entitled to recover a reasonable award of fees for the services provided by their attorneys’ fee expert witness, John J. McLaughlin, Esquire. Mr. McLaughlin expects to be paid for his services in this case, and this is an exceptional case, where the amount of time required for his preparation and testifying as an expert witness was burdensome. The Court finds that a reasonable hourly rate for his services as an expert witness is $650 per hour, and that the reasonable amount of time for the services he rendered is 8.75 hours. Therefore, the Court hereby determines that an award of $5,687.50 is reasonable for the expert witness services provided by Mr. McLaughlin.

9. Total Amount — Based on the foregoing, the Court finds that the total amount of reasonable attorneys’ fees and costs incurred by the Plaintiffs is $81,575.50 (i.e., $69,146.25 + $6,741.75 + $5,687.50).

10. Final Judgment — It is, therefore, ORDERED AND ADJUDGED, that the Plaintiffs shall recover reasonable attorneys’ fees and costs from the Defendant, in the amount of $81,575.50, which shall bear interest since June 28, 2012, at the rates established by the Florida Department of Financial Services pursuant to Section 55.03, Florida Statutes (see, www.myfloridacfo.com/aadir/interest.htm), for which let execution issue. The Defendant shall make its check payable to The Law Offices of Christopher P. Calkin, P.A., who shall be responsible for distributing the proceeds.

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