20 Fla. L. Weekly Supp. 69c
Online Reference: FLWSUPP 2001COKEInsurance — Personal injury protection — Attorney’s fees — Where, after PIP case had been in litigation approximately ten months, defendant insurer sought leave to amend its answer to include defense that plaintiff medical provider was a member of a class action which had been settled, and was therefore precluded from filing suit, plaintiff was entitled to be compensated in county court PIP case for time spent in obtaining order from circuit court allowing plaintiff to belatedly opt out of class action based upon showing that plaintiff had not received notice of the class action — Work in circuit court case was intertwined with county court case and was necessitated by defendant’s conduct in not advising plaintiff at the outset of the county court action of the pendency of the class action
DELRAY ADVANCED MEDICAL INC., (A/A/O TIMOTHY COKE), Plaintiff(s), vs. USAA CASUALTY INSURANCE COMPANY, Defendant(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. 10-004129 COCE 56. September 21, 2012. Linda R. Pratt, Judge. Counsel: Sisy A. Mukerjee and Cindy A. Goldstein, for Plaintiff. Reuven T. Herssein, for Defendant.
FINAL JUDGMENT FOR ATTORNEY’S FEES & COSTS
THIS action was heard on plaintiff’s motion to tax attorney’s fees and costs under F.S. 627.428. Upon consideration of the record, the evidence, and arguments of counsel it is
ORDERED and ADJUDGED that plaintiff’s motion to tax reasonable attorney’s fees and costs is granted.
Plaintiff filed suit against defendant for approximately two thousand eight hundred dollars ($2,800.00) in PIP benefits. In response, defendant raised numerous defenses, including fraud and/or misleading statements, falsification of Federal Tax ID numbers, improper completion of CMS 1500, failure to submit a timely and proper disclosure and acknowledgment form, defective demand letter, illegal fee splitting and brokering and the preemption of plaintiff’s right to sue because of a pending class action.
Defendant litigated the case aggressively, serving three 57.105 motions and a one dollar ($1.00) proposal for settlement. After the case had been in litigation for approximately ten months, defendant sought leave to amend its answer to include the defense that plaintiff was a member of a class action which had settled and, therefore plaintiff was precluded from filing suit. This raised a novel issue which required plaintiff to seek leave in the circuit court class action to belatedly opt out of the class. Plaintiff was ultimately successful in obtaining leave to opt out of the class action almost two years after the issue was first raised, based upon showing that it had not received notice of the class action.
Defendant contends that plaintiff’s counsel is not entitled to any fees for work performed in the circuit court matter because it was a different case. Plaintiff contends that the work in the circuit court case was intertwined with the county court case and was necessitated by defendant’s conduct in not advising plaintiff at the outset of the county court action of the pendency of the class action.1 The Court agrees with plaintiff that counsel is entitled to be compensated for the time spent in obtaining the order allowing the belated opt out of the class action suit.
In determining the lodestar, the Court has considered the factors listed in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2nd 1145 (Fla. 1985) and the Rules of Professional Conduct 4-1.5(b). In particular, the Court notes that the class action issue was unusual. The client was new to counsel, and acceptance of the case precluded other employment. The class action issue posed a particular time limitation when it arose. The result obtained was very favorable, especially given the considerable risks involved. The Court is familiar with the experience, reputation, and ability of plaintiff’s counsel, and finds that a less experienced attorney could not have handled the litigation against defense counsel, who is a very experienced and tenacious litigator who “went to the mat” on this case. The fee was contingent, as is customary in these cases. Based upon the above factors, the Court finds that a reasonable hourly rate for both Ms. Mukerjee and Ms. Goldstein is three hundred seventy-five dollars ($375.00) per hour, and a reasonable rate for Ms. Diehl is one hundred seventy-five dollars ($175.00) per hour. A reasonable number of hours for Ms. Mukerjee to have spent is one hundred eight (108) hours, which includes 27.3 hours spent in connection with obtaining the circuit court opt out order and also includes eight hours travel time to Tampa. (See: Baybridge Chiropractic Clinic, PA vs. USAA Casualty Insurance Company, 18 Florida Law Weekly Supp. 1016(a), July 20, 2011.) This is less time than defense counsel spent.2
A reasonable number of hours for Ms. Goldstein is 7.2, which includes four hours spent in connection with obtaining the opt out order. A reasonable number of hours for Ms. Diehl is .8.
No multiplier was sought in this case. Plaintiff’s expert, Mr. Stillo, is entitled to twenty-two (22) hours at four hundred dollars (S400.00) per hour.3 Plaintiff is awarded costs of one thousand five hundred seventy-three dollars and eighty cents ($1,573.80). Therefore judgment is entered in favor of plaintiff, Delray Advanced Medical, Inc., and against USAA Casualty Insurance Company in the sum of fifty-three thousand seven hundred thirteen dollars and eighty cents ($53,713.80), plus prejudgment interest of 4.75% from February 8, 2012 until date of this judgment plus interest thereafter at the legal rate until paid, for which let execution issue.
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1In her order allowing plaintiff to belatedly opt out, the Circuit Judge stated that she was “troubled” by the defendants’ (USAA was a defendant) failure to make their attorneys aware of the existence of a class action lawsuit until after the opt-out deadline had passed, and a final judgment entered.
2Plaintiff’s counsel and defendant’s counsel each spent approximately ninety-eight (98) hours on this case through January 28, 2010. Defendant’s position is that only around forty-one (41) hours total for plaintiff’s counsel is reasonable.
3This is more than the usual amount of time for an expert, due to the amount of time defense counsel spent in cross examination of witnesses. The fee hearing stretched over two (2) days.
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