20 Fla. L. Weekly Supp. 713a

Online Reference: FLWSUPP 2007SPENInsurance — Personal injury protection — Attorney’s fees — Prevailing insured — Reasonable hours expended — Time claimed by insured’s attorney is reduced to delete travel time, time spent on clerical tasks, vague and duplicative entries, excessive billing and hours spent due to mistrial declared at request of insured on issue on which insurer ultimately prevailed — Reasonable hourly rate — Rate is capped at rate agreed to by insured and her counsel in original contract — Rate cannot be increased to higher rate agreed to by insured during litigation where agreement was not reduced to writing as required by original contract — Insurer’s request for downward adjustment of lodestar fee based on fact that jury only awarded one-third of damages sought is denied where it is not possible to separate investigation and prosecution of successful claims from unsuccessful claims that all involved treatment with same medical provider for same injuries — Contingency risk multiplier — Where application of contingency risk multiplier would result in fee that is manifestly unjust given amount in dispute, and case presents no rare or unique circumstances that weigh in favor of discounting that disparity, application of multiplier is not appropriate — Fees of attorney’s fees experts are reduced to reflect testimony disallowed or portions of testimony on which court did not rely — Where presentation of testimony by two fee experts was not necessary, each expert’s fee is reduced by half — Expert witness fee of treating physician is taxable cost — Claimed paralegal costs not supported by evidence are disallowed

JENNIFER A. SPENCER, individually, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois Corporation, Defendant. County Court, 10th Judicial Circuit in and for Polk County, Small Claims Division. Case No. 53-2001-SC-000702. March 4, 2013. J. Kevin Abdoney, Judge. Counsel: John Hugh Shannon, John Hugh Shannon, P.A., Lakeland; and John A. Naser, Law Office of John Naser, Lakeland, for Plaintiff. Robert H. Oxendine and Edwin Valen, Oxendine & Oxendine, P.A., Tampa, for Defendant.

SUPPLEMENTAL FINAL JUDGMENT AWARDINGATTORNEY FEES AND COSTS ON BEHALFOF JOHN HUGH SHANNON

THIS CAUSE came to be heard on December 4, 2012 and January 18, 2013, for hearing upon the Plaintiff’s Verified First Amended Motion for Attorney’s Fees and Cost against State Farm. Present on both dates were counsel for the Plaintiff, John H. Shannon, Esquire, and John A. Naser, Esquire; the Plaintiff, Jennifer A. Spencer, n/k/a Jennifer A. Stanley; counsel for the Defendant, Edwin V. Valen; and the Defendant’s corporate representative, Rhonda McAlpine. The Court received testimony from witnesses Joann Dupont, Ginger Corda, Neal O’Toole, Bradford Stewart, Jerel Eaton, John Shannon, Jennifer Stanley and Amy Cohen. The Court received several exhibits in evidence. 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 Supplemental Final Judgment Awarding Attorney Fees and Costs on behalf of John Hugh Shannon¹ herein:

BACKGROUND

The Plaintiff, through her first attorney, William Corda, filed her original complaint seeking to recover benefits under a personal injury protection (hereinafter “PIP”) policy issued by the Defendant. The Plaintiff specifically sought damages in the amount of $2,273.00, plus interest, attorney fees and costs. After Mr. Corda died in 2003, the Plaintiff hired her current counsel, John Shannon. This case pended for several years, was vigorously litigated pretrial by both parties, suffered a mistrial in January of 2011, and was ultimately tried over four days before a jury in December of 2011. On January 30, 2012, following a $752.00 jury verdict for the Plaintiff, the Court entered a Judgment in Favor of Spencer (hereinafter “Judgment”) for principal of $752.00 and prejudgment interest of $812.81, reserving jurisdiction to determine the issue of attorney fees.

On December 12, 2011, the Plaintiff filed her Motion for Attorney’s Fees and Cost. The Plaintiff filed her Verified First Amended Motion for Attorney’s Fees and Cost against State Farm on April 13, 2012 (hereinafter “Motion”). The Plaintiff further claims that Mr. Shannon reasonably expended 555.26 hours of attorney time at a rate of $350.00 per hour through November 2007 and $450.00 per hour thereafter, for a lodestar of $244,204.00. The Plaintiff also seeks a contingency risk multiplier between 2.0 and 2.5, for total attorney fees ranging from $491,000 to $613,730. The Plaintiff further seeks costs of approximately $19,500.00, which includes an expert fee for the treating physician. Finally, the Plaintiff seeks witness fees for her attorney fee experts totaling $15,255.00.

ENTITLEMENT TO ATTORNEY FEES AND COSTS

A. ENTITLEMENT TO ATTORNEY FEES

Pursuant to section 627.428, Florida Statutes, the Plaintiff is entitled to recover a reasonable attorney fee to compensate her counsel. Entitlement to said fee is fixed as of the date the Judgment was entered and filed with the Clerk of Courts on January 30, 2012. See § 627.428, Florida Statutes.

B. ENTITLEMENT TO COSTS

Pursuant to section 57.041, Florida Statutes, the Plaintiff, having recovered judgment, is entitled to reasonable costs.

FINDINGS AND ANALYSIS REGARDING REASONABLE ATTORNEY FEES

A. AS TO THE LEGAL STANDARD

In determining reasonable attorney fees, the Court must consider the factors delineated in the Rules of Professional Conduct relating to fees and costs for legal services. Florida Patient’s Comp. Fund v. Rowe, 472 So. 2d 1145, 1150 (Fla. 1985). Specifically, the Court must consider:

(A) the time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(B) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer;

(C) the fee, or rate of fee, customarily charged in the locality for legal services of a comparable or similar nature;

(D) the significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained;

(E) the time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional or special time demands or requests of the attorney by the client;

(F) the nature and length of the professional relationship with the client;

(G) the experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency of effort reflected in the actual providing of such services; and

(H) whether the fee is fixed or contingent, and, if fixed as to amount or rate, then whether the client’s ability to pay rested to any significant degree on the outcome of the representation.

R. Regulating Fla. Bar 4-1.5(b).

The first step in the Court’s analysis is to determine the time reasonably spent performing the legal services. Rowe, 472 So. 2d at 1150. To satisfy the Court that the time claimed is reasonable, it is incumbent upon counsel to keep accurate time records. Id. This is especially important where a party, other than the lawyer’s client, is obligated to pay the fee. Id. (citing M. Serra Corp. v. Garcia, 426 So.2d 1118 (Fla. 1st DCA); Brevard County School Board v. Walters, 396 So.2d 1197 (Fla. 1st DCA 1981). Lack of detail or excessive or unnecessary entries in the attorney’s billing weigh in favor of a reduction of the hours claimed. Id. The novelty and difficulty of the questions involved and the vigor with which the opposing party litigated the case should be reflected in the number of hours claimed. Rowe, 472 So. 2d at 1150; Dayco Prod’s v. McLane, 690 So. 2d 654, 655-56 (Fla. 1st DCA) [22 Fla. L. Weekly D673a].

The second step requires the Court to determine the reasonable hourly rate for the attorney’s services. Rowe, 472 So. 2d at 1150. When determining the reasonable hourly rate, the Court must take into account all of the factors listed in the Rules of Professional Conduct 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. Id. at 1150-51. “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].

In reaching its judgment, the Court has conducted the foregoing analysis, considering the testimony and evidence presented, including the testimony of the experts for both parties.

B. AS TO JOHN SHANNON

1. Reasonable hours expended

In determining whether the hours claimed by the Plaintiff for Mr. Shannon’s services are reasonable, this Court has painstakingly reviewed Mr. Shannon’s time records entry by entry; has compared them to the contents of the court file; and has considered them in light of the testimony and other evidence presented. The Court has additionally considered that this case did not present any novel or complex factual or legal issues, but was, nevertheless, vigorously litigated by both parties. After considering the foregoing, the Court finds that over 250 hours claimed should not be awarded in this case and will endeavor to detail its reasons for so finding.

a. Travel time

The Statewide Uniform Guidelines for Taxation of Costs in Civil Cases (hereinafter “Guidelines”) provides that travel time of attorneys should not be taxed as costs. In re Amendments to Uniform Guidelines for Taxation of Costs, 915 So. 2d 612 (Fla. 2005) [30 Fla. L. Weekly S797a]. While the Guidelines are advisory only, this Court’s duty is 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. Travel time for attorneys should be awarded only where it can be demonstrated that a competent, local attorney was unavailable to undertake the representation. Dish Network v. Myers, 87 So. 3d 72, 78-79 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D975a] (citing Mandel v. Decorator’s Mart, Inc. of Deerfield Beach, 965 So.2d 311, 315 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D2242c]). Under the circumstances of this case, the Court finds that time claimed for attorney travel is unreasonable.

Mr. Shannon’s billing makes it a difficult task to determine how much time billed constitutes travel. This is so because the entries that include travel include time for other tasks that may otherwise be reasonable. As an example, on February 13, 2007, the following entry appears in Mr. Shannon’s billing records: “1.75 [hours] Travel and attendance at hearing for continuance, notation to file.” Because travel and attendance are combined as a block entry, it is difficult to determine how much time should be attributed to each task. The Court notes that Mr. Shannon’s office is located in south Lakeland and is within twenty minutes of the courthouse in Bartow where all hearings took place. The Court has therefore deducted 40 minutes, or 0.67 hours from each entry referencing travel and attendance at a hearing. The Court has made other deductions for travel to depositions and mediation estimating approximate travel time based upon the location indicated in the notices contained in the court file. Total time billed as travel time for Mr. Shannon is 21.09 hours. The Court concludes that such time is not reasonable.

b. Clerical tasks

Mr. Shannon’s billing reflects a substantial number of entries for review and execution transmittal letters, faxes and verification of enclosures, totaling 41.23 hours of attorney time. The Defendant objects to an award of fees for this time, claiming that such tasks are clerical or administrative in nature. The Plaintiff argues that, because the responsibility falls on the lawyer to ensure that such letters are prepared, transmitted and accompanied by the appropriate enclosures, such time constitutes attorney time for which compensation is warranted.

While the Court agrees that the attorney is ultimately responsible for the accuracy of transmittal correspondence, the Court does not agree that such tasks constitute attorney tasks. No special legal skill or training is required to review a brief transmittal letter and compare it to enclosures attached to ensure its accuracy. The Court therefore concludes that the time claimed by the Plaintiff for these tasks is not compensable. Youngblood v. Youngblood, 91 So. 3d 190, 192 (Fla. 2d DCA 2012) [37 Fla. L. Weekly D1375a] (citing Dayco Prods. v. McClane, 690 So. 2d 654 (Fla. 1st DCA 1997) [22 Fla. L. Weekly D673a]).

c. Duplicative entries

Mr. Shannon’s time records contain billing entries which appear to be duplicative based upon the description of services and date performed. The Court finds that 2.62 total hours represent duplicative or multiplicative entries. The Court concludes, therefore, that such time is not reasonable.

d. Vague entries

Mr. Shannon’s billing contains a substantial number of time entries which are vague. Such entries include descriptions of work performed such as “review of document” or “review and execution of blank document”. The Court finds that such entries do not fairly apprise the paying party or the Court as to the type of service performed such that it may be said that the service was reasonably necessary. The Court finds that the total time reflected in vague entries in Mr. Shannon’s billing records is 4.72 hours and concludes that such time is not reasonable.

e. The mistrial, related motion practice, and additional trial preparation

A jury was selected in this matter before a predecessor judge on January 18, 2011, and the case proceeded to trial on January 19, 2011. Prior to opening statements, an issue arose regarding the Plaintiff’s intent to introduce as an exhibit the deposition of the Defendant’s corporate representative. The Defendant objected, asserting that while the Plaintiff was free to publish the deposition to the jury by reading from it, it was not proper to introduce the actual deposition as a physical exhibit. The Plaintiff claimed surprise and prejudice and moved successfully for a mistrial.

Thereafter, the Plaintiff filed a Motion to Admit Deposition into Evidence and a First Amended Motion to Admit Deposition into Evidence, seeking a pretrial ruling that the deposition of the corporate representative would be admissible at trial. A hearing was conducted after which the Court found the deposition inadmissible as a physical exhibit. The Plaintiff then filed a Motion for Rehearing of its First Amended Motion to Admit Deposition into Evidence which was denied.

The mistrial was declared by the predecessor judge at the request of the Plaintiff upon an issue that the judge ultimately decided in favor of the Defendant. The Defendant did nothing, other than anticipate standard and lawful procedure with regard to the deposition, to bring about the mistrial. Even if it can be argued that, nonetheless, the Plaintiff would have been prejudiced if forced to trial with an adverse evidentiary ruling, the prejudice would have been a product of Plaintiff’s misunderstanding of the law. The Defendant should not have to foot the bill for the legal missteps of the opposing party.

Therefore, the Court concludes that the 17.05 hours expended at the January 2011 jury selection and trial and the 23.41 hours spent preparing, attending hearings on, and wrapping up the Motion and First Amended Motion to Admit Deposition into Evidence and Motion for Rehearing of the First Amended Motion to Admit Deposition into Evidence are not reasonable in the context of an award of attorney fees. See Baratta v. Valley Oak Homeowner’s Assn. at the Vineyards, Inc., 928 So. 2d 495, 499 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D1348c] (citing Guthrie v. Guthrie, 357 So. 2d 247, 248 (Fla. 4th DCA 1978)).

Additionally, Mr. Shannon logged 37.18 hours of time for additional trial preparation after the mistrial in December 2011. Such additional trial preparation would not have been necessary but for the mistrial declared at the behest of the Plaintiff through no fault of the Defendant. The Court would assume that such preparation was complete prior to December 2011. While the Court finds it reasonable that Mr. Shannon engaged in trial preparation for the second trial which took place nearly a year later, it is not appropriate to tax the cost of such preparation against the Defendant. The Court therefore concludes that 37.18 hours of additional trial preparation are not reasonable in the context of an award of attorney fees. See Baratta, 928 So. 2d at 499 (citing Guthrie, 357 So. at 248).

f. Entries not reflected by or in conflict with the court record

Mr. Shannon’s billing records reflect an entry on December 1, 2006 of 5.9 hours for “[t]ravel and attendance to mediation, notation to file.” The mediator’s report filed December 14, 2006 indicates that mediation lasted 2 hours. As discussed previously, the Court declines to award fees for Mr. Shannon’s travel time. The Court finds that notation to Mr. Shannon’s file would entail negligible time. The Court therefore finds that 3.9 hours associated with mediation are not reasonable.

Additionally, Mr. Shannon’s time records reflect entries for reviewing and executing notices of filing entailing .07 hours for each date of September 15, 2009; February 12, 2010; September 13, 2010; January 14, 2011; October 25, 2011; November 16, 2011; and November 22, 2011. However, the Court file fails to reflect a notice of filing for any of the aforementioned dates within a reasonable time thereafter. The Court therefore finds that the foregoing .49 hours are not reasonable.

With regard to the trial conducted during the week of December 5, 2011, Mr. Shannon’s billing reflects a total of 58.2 hours for travel to and from and attendance at trial. The Court has already deducted 2.68 hours for travel, leaving 55.52 hours for trial services. The Court has reviewed the trial memoranda generated by and filed with the Clerk which reflect to a reasonable degree of certainty the start and end times for each of the four (4) days of trial. According to those memoranda, the actual trial consumed approximately 34 hours. Therefore, the Court finds that the additional 21.52 hours billed for the trial are not reasonable.

Finally, Mr. Shannon’s billing reflects that on March 5, 2011 and March 6, 2011, 3.26 total hours were expended researching and drafting a memorandum relating to the qualification of an expert. Again, the Court file fails to reflect the filing of any such memorandum. The Court therefore finds that the foregoing 3.26 total hours are not reasonable.

The Court concludes that 29.17 hours claimed are inconsistent with or unsupported by the court record and that such hours are therefore not reasonable.

g. Excessive billing

As a preliminary matter, the Court notes that Mr. Shannon’s billing contains numerous entries involving substantial time and referencing more than one type of service. For instance, on June 18, 2009, Mr. Shannon’s time records indicate 5.31 hours for “[r]eview of file and dictation of notes, RES and begin to outline jury instructions and issues in the case, REV of the ADJ depo and EXH and begin to outline IP depo and dictation of notes, notation to file.” Such block billing creates a serious obstacle for the Court in determining whether the time claimed is reasonable and tempts the Court to engage in guesswork — a practice most judges are loath to sponsor.

The specific problem created by the block billing entries is that if, for instance, the Court concludes two hours are reasonable for researching and preparing jury instructions, the Court has no way of knowing whether Mr. Shannon met that mark. Thus, if Mr. Shannon actually spent four hours of the blocked time on jury instructions, he obtains a windfall if the Court awards all time. On the other hand, if Mr. Shannon spent only fifteen minutes on jury instructions, but the Court guesses that he spent four hours but awards only two for this task, he is deprived of fees for time that may otherwise be reasonable. Such a position is less than comfortable for the finder of fact. Nevertheless, in addressing these entries, the Court is guided by the principle announced in Rowe — that “[i]nadequate documentation may result in a reduction in the number of hours claimed, as will a claim for hours that the court finds to be excessive or unnecessary.” 472 So. 2d at 1150.

The Court has examined Mr. Shannon’s billing for excessive charges relating to the following specific tasks: research and preparation of jury instructions and issues on the claim; review of medical records; and conferences with Dr. Eaton. Cumulatively for these general areas of legal service, Mr. Shannon billed 63.61 hours.

In determining whether the time claimed for the aforementioned services is reasonable, the Court notes that the present case is a garden variety PIP case involving an IME cutoff. The injuries sustained were minor and were treated chiropractically. In this case, as in virtually all PIP cases, the real issues were whether the medical services were related to an accident, whether the services were medically necessary, and whether the charges for the services were reasonable. In 2007, the Supreme Court authorized for publication and use a standard instruction regarding issues on the claim for Personal Injury Protection Insurance Benefits (PIP). In re Standard Jury Instructions in Civil Cases (No. 06-02), 966 So. 2d 940 (2007) [32 Fla. L. Weekly S563a]. In re Standard Jury Instructions in Civil Cases (No. 06-02), 966 So. 2d at 942 app. . Said instruction was reorganized in 2010, but remained unchanged in substance. In re Standard Jury Instructions in Civil Cases (No. 09/01), 35 So. 3d 666 app. . (2010) [35 Fla. L. Weekly S149a].²

Moreover, Mr. Shannon has been practicing law for thirty-seven years. He is an experienced litigator and recognized as one of the few attorneys in the Tenth Judicial Circuit who handle first party insurance disputes. In addition, Mr. Shannon is not new to the PIP arena, nor to State Farm’s litigation tactics. Indeed, at the time Mr. Shannon undertook representation in this case, he had recently tried to verdict a PIP suit involving Mr. Oxendine. Mr. Shannon also had prior experience with one of State Farm’s experts in this case, Dr. Ison.

The Court finds that a reasonable number of hours for the three categories of service referenced above is as follows: for jury instruction issues and issues on the claim including attendance at a hearing thereon — 6.00 hours; for review of medical records — 8.00 hours; and for conferences with Dr. Eaton — 4.00 hours. Therefore, of the 63.61 hours billed cumulatively for these services, the Court finds that 45.61 hours were excessive in the context of taxation of attorney fees.

h. Time expended litigating amount of fees

Judgment was entered in this matter on January 30, 2012. While the Judgment, which was proposed by the Plaintiff, reserved jurisdiction to determine entitlement to and amount of attorney fees and costs, entitlement was nevertheless fixed as of January 30, 2012. The Court finds that 40.9 hours in Mr. Shannon’s billing represent time expended litigating the amount of fees. As such, the Court concludes that such time is not compensable. State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830, 833 (Fla. 1993).

i. Conclusion as to reasonable number of hours

The Court has specifically identified 258.26 hours which it finds not reasonable in terms of taxation of attorney fees. The Court has thoroughly examined the remaining hours detailed in Mr. Shannon’s time records and finds them to be reasonable and necessary to the prosecution of the Plaintiff’s claim. Mr. Shannon’s time records reflect 555.26 total hours claimed. After deduction of the 258.26 hours identified by the Court, total hours which the Court finds reasonable are 297.00.

2. Reasonable Hourly Rate

The written contract between Mr. Shannon and Ms. Stanley provides for an hourly rate of $350.00 per hour. The contract further provides that the rate may be increased during the course of representation, but only if such increase is agreed to in writing. According to the testimony, in December of 2007, Mr. Shannon and the Plaintiff agreed that the rate would increase to $450.00 per hour; however, said agreement was not reduced to writing as required by the original contract.

The Defendant argues correctly that the Plaintiff’s fee must be capped at the rate agreed upon by the Plaintiff and Mr. Shannon in their contract. Western and Southern Life Insur. Co. v. Beebe, 61 So. 3d 1215, 1216-17 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D1082a] (citing Rowe, 472 So. 2d at 1151). The Defendant further argues it cannot be forced by the Court to pay fees at the increased rate of $450.00 per hour because such agreement was not reduced to writing.

In order for a party to have standing to enforce the terms of a contract to which it was not a party, it must be shown that the provisions of the contract “primarily and directly benefit the third party or a class of persons of which the third party is a member.” Greenacre Properties, Inc. v. Rao, 933 So. 2d 19, 23 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D1223b](citing Caretta Trucking v. Cheoy Lee Shipyards, Ltd., 647 So.2d 1028, 1031 (Fla. 4th DCA 1994) [20 Fla. L. Weekly D20a]). Here, the benefit which State Farm seeks to enforce is the initial contractual requirement that any subsequent agreement to an increase in hourly rate be reduced to writing. Because the terms of the contract between Mr. Shannon and the Plaintiff clearly require that only State Farm would be responsible for the Plaintiff’s attorney fees, the conclusion is inescapable that State Farm is the intended beneficiary of the terms relating to hourly rate. Indeed, it matters not one iota to the Plaintiff whether such terms are observed. Therefore, because decisional law allows the Defendant to enforce the express cap on the hourly rate to limit its liability, it logically follows that the Defendant ought to be able to invoke other provisions of the fee agreement that define or otherwise restrict circumstances under which that rate may be adjusted. The Court therefore concludes that the maximum hourly rate for which the Court may award fees is $350.00 per hour.

In its analysis as to reasonable hourly rate, the Court has considered all of the factors listed in Rule 4.1.5 of the Rules of Professional conduct, 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. Rowe, 472 So. 2d at 1150-51. The Court has specifically considered the testimony of the fee experts, the orders awarding fees for Mr. Shannon entered in other cases, and Mr. Shannon’s thirty-seven years of experience practicing law. Moreover, the Court has had the benefit of witnessing for itself the considerable skill and expertise demonstrated during the lengthy trial and numerous hearings conducted in this case. No doubt, both counsel for the Plaintiff and Defendant are true artisans of their craft. While the Defendant’s expert questions whether $350.00 per hour is a reasonable rate for Mr. Shannon, her testimony, to the contrary, supports the rate claimed. Specifically, Defendant’s expert testified that a reasonable hourly rate for Mr. Stewart, one of Plaintiff’s fee experts with over twenty-five years less experience than Mr. Shannon, is $275.00. Such an opinion supports the conclusion that $350.00 per hour is reasonable for Mr. Shannon. Based upon the foregoing, the Court concludes that said rate is reasonable.

3. Lodestar

The Court has found that 297 hours were reasonable and necessary and that a reasonable hourly rate for Mr. Shannon is $350.00 per hour. The lodestar attorney fee is, therefore, $103,950.00.

C. WHETHER A DOWNWARD ADJUSTMENT IS WARRANTED

The Defendant asserts that the lodestar in this case should be reduced based upon the results obtained pursuant to Fashion Tile & Marble, Inc. v. Alpha One Constr. & Assoc’s, Inc., 532 So. 2d 1306 (Fla. 2d DCA 1988), and the authorities cited therein. Specifically, the Defendant argues that the fee should be reduced by two-thirds because the jury awarded approximately one-third of the damages claimed, and points out that the Plaintiff testified that she was not happy with the verdict.

In Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (Fla.1985), the Florida Supreme Court announced:

When a party prevails on only a portion of the claims made in the litigation, the trial judge must evaluate the relationship between the successful and unsuccessful claims and determine whether the investigation and prosecution of the successful claims can be separated from the unsuccessful claims. In adjusting the fee based upon the success of the litigation, the court should indicate that it has considered the relationship between the amount of the fee awarded and the extent of success.

See also Bd. Of Regents v. Winters, 918 so. 2d 313, 314-15 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D2134a]. “The trial court cannot, however, reduce the fee based on a simple ratio of successful issues to issues raised.” Fashion Tile, 532 So. 2d at 1308. A proper analysis involves an evaluation of the relationship between the successful and unsuccessful claims and whether the investigation and prosecution of the successful and unsuccessful claims can be separated. Id. at 1308. If the Court is able to separate claims in this manner, the Court may reduce the fee by identifiable time spent on the unsuccessful claims or by some proportional adjustment based upon “unsuccessful and unrelated claims.” Id. at 1309 (citing Norman v. Housing Authority, 836 F. 2d 1292 (11th Cir. 1988)).

In the present case, the Plaintiff sought damages for unpaid benefits relating to chiropractic treatment for injuries resulting from a single car accident. The Plaintiff’s request for damages was based upon non-payment for thirty separate dates of service with the same chiropractor spanning a time period of approximately one year. The jury awarded damages for every date of service claimed for the first four months of treatment and found that the remaining dates of service were not medically necessary.

The Court cannot find any rational basis upon which to separate the successful claims from the unsuccessful claims in this case. The claims were all for chiropractic treatment with a single doctor, for a single set of injuries resulting from a single car accident. The only reasonable inference to be drawn by the verdict is that treatment subsequent to June 29, 1999, was, in the jury’s estimation, simply not medically necessary. Based upon its review of the file as well as its consideration of the testimony and evidence presented at the trial, the Court finds find that the investigation and prosecution of the claims could not be separated. Thus, in this case, to adjust the fee downward based upon results obtained would amount to an improper reduction based merely upon a percentage of the recovery. The Court therefore declines to adjust the fee downward in this case.

D. WHETHER A CONTINGENCY RISK MULTIPLIER IS WARRANTED

The Plaintiff seeks a contingency risk multiplier in this case between 2.0 and 2.5. If the Court imposes such a multiplier, the attorney fees in this matter would range from $207,900.00 at the bottom end to $259,875.00 at the top. The present case does not justify the award of such fees.

In Standard Guaranty Insurance Company v. Quanstrom, the Florida Supreme Court set forth different criteria for evaluating three general categories of cases — public policy enforcement cases; torts and contract cases; and family law, estates, trusts and eminent domain cases. 555 So. 2d 828, 833-35 (Fla. 1990). In cases involving contract disputes, the amount involved is a factor of critical importance in the analysis regarding application of a contingency risk multiplier. Quanstrom, 555 So. 2d at 834. See also Palma, 629 So. 2d at 838. In the present case, application of a multiplier as requested would result in an attorney’s fee representing 91 to 114 times the amount in controversy.

What is clear from Quanstrom is that application of a contingency risk multiplier is not mandatory, but within the sound discretion of the trial court. Quanstrom, 555 So. 2d at 835. Further, the Court is mindful of its duty to award a reasonable fee and to employ common sense in doing so. Application of the multiplier in this case would result in a fee that, when compared to the circumstances of this case, belies the manifest justice of the case, even if there is sufficient evidence of the other factors necessary to justify it. See generally Ziontz v. Ocean Trail Unit Owner’s Ass’n Inc., 663 So. 2d 1334 (Fla. 4th DCA 1993).

While application of a multiplier in this case would result in an attorney fee which far exceeds the amount in controversy or the recovery obtained, the Court is cognizant that such fact does not, by itself, prohibit such an award. In State Farm Fire & Cas. Co. v. Palma, the Florida Supreme Court approved an attorney’s fee award of $253,500.00 to the Plaintiff in a PIP suit involving a $600.00 bill for a thermographic scan. 555 So. 2d 836 (Fla. 1990). The Court recognized that there was a “great disparity” between the amount recovered by the Plaintiff and the award of fees. Id at 838. However, the Court stressed that certain “unique and rare” cases present “extraordinary circumstances” such that the amount of recovery or amount in dispute is not a significant factor in assessing the reasonableness of an attorney’s fee. Id. The extraordinary circumstance present in Palma was the fact that “the issue was unrelated to the amount involved but concerned the establishment of a nationwide precedent regarding thermographic examinations.” Id.

In the present case, there are no rare or unique circumstances that weigh in favor of discounting the extraordinary disparity between the amount in controversy and the fee that would result from application of a multiplier in this case. The only extraordinary circumstance present in this case is the vigor with which the Defendant met the prayers of the Plaintiff. The cost of such vigor is, however, reflected in the number of hours the Court has determined to be reasonable in this case and is otherwise not an appropriate basis upon which to impose a multiplier. See Dayco Prods. v. McLane, 690 So. 2d 654, 656 (Fla. 1st DCA 1997) [22 Fla. L. Weekly D673a] (citing Regal Wood Prods. v. Baschansci, 603 So. 2d 551 (Fla. 1st DCA 1992)).

Because the Court finds that application of the multiplier would result in a fee that is manifestly unjust given the amount in dispute, and because this case presents no unique or rare circumstances, it is unnecessary to make findings regarding the other factors set forth in Quanstrom. The Court finds that the lodestar calculation represents a reasonable fee that adequately compensates the Plaintiff for attorney fees in this matter.

FINDINGS AND ANALYSIS REGARDING COSTS

A. EXPERT FEES

1. Neil O’Toole

The Court has considered Mr. O’Toole’s qualifications and experience to give an opinion as to the attorney fee issues presented in this case. The Court has also considered Mr. O’Toole’s complete lack of experience with PIP cases. The Court finds, based thereon, that a reasonable hourly rate for Mr. O’Toole is $300.00 per hour. Further, the Court has considered the hours claimed by Mr. O’Toole as referenced in his invoice and finds that 21.3 three hours is reasonable. Such figures result in a maximum fee of $6,390.00 for Mr. O’Toole.

However, while the Court has considered Mr. O’Toole’s testimony as it relates to issues regarding imposition of a multiplier, the Court disregarded said testimony and did not rely upon it in any way in reaching its judgment. As such, the Court concludes that it is just and fair to reduce Mr. O’Toole’s maximum fee by one-third, given that the multiplier issue comprised approximately one-third of the analysis in this matter. Therefore, the resulting maximum fee for Mr. O’Toole would be $4,259.57, subject to further reduction as referenced further herein.

2. Bradford Stewart

The Court has considered Mr. Stewart’s qualifications and experience to give an opinion as to the attorney fee issues presented in this case. The Court has also considered Mr. Stewart’s substantial experience with PIP cases. The Court finds, based thereon, that a reasonable hourly rate for Mr. Stewart is $300.00 per hour. Further, the Court has considered the hours claimed by Mr. Stewart as testified to at the fee hearing and finds that 16.2 three hours is reasonable. Such figures result in a maximum fee of $4,860.00 for Mr. Stewart.

However, the Court did not permit Mr. Stewart to give an opinion regarding whether the relevant market required the possibility of a multiplier because at the time representation was undertaken, Mr. Stewart was not a lawyer but only a knowledgeable consumer of legal services.³ As such, the Court concludes that it is just and fair to reduce Mr. Stewart’s maximum fee by one-third, given that the multiplier issue comprised approximately one-third of the analysis in this matter. Therefore, the resulting maximum fee for Mr. Stewart would be $3,239.68, subject to further reduction as referenced further herein.

3. Necessity of two attorney fee experts

At the hearing, the Defendant objected to the Plaintiff calling two attorney fee experts on the ground that the second expert’s testimony was cumulative. The Court overruled the objection, concluding that, while at some point the testimony of multiple experts on the same issue may become cumulative, the presentation of the opinions of a second expert is not prohibited and may more properly be considered corroborative rather than cumulative. The Court notes that both experts were listed by the Plaintiff, that the Defendant deposed both witnesses, that the Defendant did not object pre-hearing, and that there was no pre-hearing order limiting the number of experts. As such, the Court’s ruling was supported by current decisional law. See Philippon v. Shreffler, 33 So. 3d 704 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D606a]; Sanz v. Carter, 937 So. 2d 1126 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D2038a]; Delgardo v. Allstate Insur. Co., 731 So. 2d 11 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D401a]. Nevertheless, the Court noted that whether it is appropriate to tax additional costs for the use of a corroborating expert is a separate question.

The Court found the testimony of both of Plaintiff’s experts to be helpful in considering the issues presented and, to an extent, relied on their opinions in arriving at its judgment. As such, the presentation of two experts was reasonable. However, the Court finds that one expert would have sufficed and that neither expert provided information that was not presented by the other, with the exception of Mr. O’Toole’s testimony regarding the imposition of a multiplier. However, the Court did not to any extent rely upon Mr. O’Toole’s opinion regarding application of the multiplier. In this respect, the Court finds that the presentation of two experts, though reasonable, was not necessary and that it would be unjust to tax the total fees of both against the Defendant. Therefore, the Court reduces the expert fees for each witness by one-half. Accordingly, the Court concludes that a reasonable witness fee for Mr. O’Toole is $2,430.00 and, for Mr. Stewart, $1,619.84.

B. TREATING PHYSICIAN WITNESS FEES

The Plaintiff seeks reimbursement for costs in the amount of $8,325.00 associated with what are claimed to be expert witness services rendered by the treating physician, Dr. Jerel Eaton. The Defendant objects on the basis that Dr. Eaton, as the treating physician, did not arrive at the opinions offered in Court during the course of litigation but in the course of treating his client, the Plaintiff.

As authority, the Defendant cites the Court to Frantz v. Golebiewski, 407 So. 2d 283 (Fla. 3d DCA 1981). In Frantz, the Third District held that, for purposes of the discovery provisions of Rule 1.280(b)(3) of the Florida Rules of Civil Procedure, a treating physician is not an “expert.” 407 So. 2d at 285. In reaching this conclusion, the Third District stressed that Rule 1.280(b)(3), by its plain language, restricts its application to the discovery of facts and opinions obtained or formulated in anticipation of litigation. Id. (emphasis added). Although the treating physician in Frantz was considered by the Third District to be an expert, he did not “acquire his expert knowledge for the purpose of litigation but rather simply in the course of attempting to make his patient well.” Id. (citations omitted). As such, the facts known and opinions held by the treating physician were not subject to the discovery provisions of Rule 1.280(b)(3).

There is no question that, in the present case, the facts known and opinions held by Dr. Eaton were acquired during his treatment of the Plaintiff rather than in anticipation of litigation. However, the Court is unable to agree that Frantz operates as a bar to the Plaintiff’s recovery of a reasonable expert witness fee for Dr. Eaton, a non-party in this case. The issue in Frantz was not whether a treating physician is entitled to a reasonable witness fee to be taxed as costs, but rather, as previously stated, whether the knowledge and opinions held by the treating physician are subject to certain discovery rules. The rationale for applying the discovery rules only to non-treating experts is clear. Treating physicians routinely make records of their observations, diagnoses and treatment of their patients whereas non-treating experts, in the absence of litigation, do not. Put differently, the knowledge and opinions contained in treatment records held by treating physicians exist independently of the litigation and are available during the normal course of discovery, whereas no such records exist for the non-treating expert. Thus, rule 1.280(b)(3) levels the expert playing field by requiring specific identification of information that would otherwise be contained in treatment records had such records been prepared.

That treating and non-treating experts are distinguishable in the context of discovery in no way compels the conclusion that they are distinguishable for purposes of taxable costs. First, section 92.231, Florida Statutes (2012), provides that an expert witness shall be allowed a witness fee and that such fees shall be taxed as costs. Section 92.231 establishes the foundation upon which a court may award the prevailing party a reasonable expert witness fee as against the opposing party. Massey v. David, 979 So. 2d 931, 939 (Fla. 2008) [33 Fla. L. Weekly S229a]. For purposes of section 92.231, “expert witness” means “any witness who offers himself or herself in the trial of any action as an expert witness . . . and who is permitted by the court to qualify and testify as such, upon any matter pending before any court.” § 92.231(1), Fla. Stat. (2012). Neither section 92.231 nor the Guidelines distinguish treating experts from non-treating experts in the context of taxable costs. Further, the Court is aware of no decisional law addressing the issue of whether a treating physician is an “expert witness” for purposes of taxation of costs. The Court therefore concludes that a non-party treating physician who testifies as an expert is entitled to a reasonable witness fee to be taxed as costs.

The record is clear in this case that Dr. Eaton is an expert in his field. Indeed, he was offered as an expert and the Court permitted him to give opinions in the area of his expertise. Therefore, the Court concludes that he has a right to a reasonable expert witness fee, that the Plaintiff has an obligation to pay said fee, and that therefore, said fee is properly taxable as a cost of litigation.

Dr. Eaton testified that he charged the Plaintiff expert witness fees for conferences with Mr. Shannon, deposition and trial testimony, and travel. To the extent that travel time is claimed, the Court declines to tax such costs against the Defendant pursuant to the Guidelines. Although Dr. Eaton may be entitled to reimbursement from the Plaintiff for the time he spent at the trial that was mistried, for the reasons previously stated, the Court declines to tax these costs against the Defendant as they were incurred as a result of the Plaintiff’s error.

The Court finds that two hours of trial and deposition preparation and six hours of trial testimony and attendance on the part of Dr. Eaton were reasonably necessary and taxable as costs against the Defendant. The Court further finds that $300.00 per hour is a reasonable hourly rate for Dr. Eaton’s services.⁴ The Court therefore concludes that $2,400.00 is a reasonable witness fee for Dr. Eaton.

C. PARALEGAL COSTS

Attached to the Plaintiff’s Motion is a time sheet for work apparently done by a paralegal. No evidence was presented or stipulation entered with regard to the claim for costs associated with the paralegal. The Court therefore declines to award costs for paralegal services.

D. WESTLAW RESEARCH

At the hearing conducted on January 18, 2013, the Plaintiff stipulated to withdrawing the request for costs associated with online research in the amount of $1,781.90. The Court therefore declines to award said costs.

E. STIPULATION AS TO OTHER COSTS

At the hearing conducted on January 18, 2013, the Defendant stipulated to litigation costs in the amount of $9,418.13. The Court accepts the Defendant’s stipulation and finds that such costs are reasonable and necessary.

F. CONCLUSION AS TO COSTS

Based upon the Foregoing, the Court concludes that total reasonable and necessary costs to be taxed against the Defendant amount to $15,867.97.⁵

Based upon the foregoing, it is hereby:

ORDERED AND ADJUDGED

1. The Plaintiff’s Verified First Amended Motion for Attorney’s Fees and Cost against State Farm is GRANTED as to John Hugh Shannon.

2. Plaintiff, shall have and recover from the Defendant, State Farm Mutual Automobile Insurance Company, on behalf of John Hugh Shannon, Esquire, a reasonable attorney fee in the amount of $103,950.00, which sum shall bear interest pursuant to section 55.03, Florida Statutes (2012), for which sum let execution issue forthwith.

3. Plaintiff shall have and recover from the Defendant, State Farm Mutual Automobile Insurance Company, on behalf of Neil O’Toole, Esquire, a reasonable witness fee in the amount of $2,430.00, which sum shall bear interest pursuant to section 55.03, Florida Statutes (2012), for which sum let execution issue forthwith.

4. Plaintiff shall have and recover from the Defendant, State Farm Mutual Automobile Insurance Company, on behalf of Bradford Stewart, Esquire, a reasonable witness fee in the amount of $1,619.84, which sum shall bear interest pursuant to section 55.03, Florida Statutes (2012), for which sum let execution issue forthwith.

5. Plaintiff shall have and recover from the Defendant, State Farm Mutual Automobile Insurance Company, on behalf of Dr. Jerel Eaton, a reasonable expert witness fee in the amount of $2,400.00, which sum shall bear interest pursuant to section 55.03, Florida Statutes (2012), for which sum let execution issue forthwith.

6. Plaintiff, shall have and recover from the Defendant, State Farm Mutual Automobile Insurance Company, on behalf of John Hugh Shannon, Esquire, litigation costs in the amount of $9,418.13, which sum shall bear interest pursuant to section 55.03, Florida Statutes (2012), for which sum let execution issue forthwith.

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¹Contemporaneously with the instant Supplemental Final Judgment, the Court has entered a separate Order of Partial Abatement of Plaintiff’s Verified First Amended Motion for Attorney’s Fees and Cost as to the Late William J. Corda. Because the Plaintiff’s Motion as it relates to Mr. Corda raises questions of apparent first impression, and because the Court has fashioned what it believes to be an appropriate but admittedly unique disposition of that portion of the Motion, the interests of justice weigh in favor of separating those issues and the Court’s resulting conclusions from those addressed in this Supplemental Final Judgment.

²The Court recognizes that, at the time the suit was filed in 2001, the PIP statute did not contain a definition of the term “medically necessary” and that some research and litigation relating to the issue of the retroactive application of the definitional provisions of the current PIP statute is reasonable. However, the Court concludes that the jury instruction issues in this case were, nevertheless, fairly mundane and easily dispensed with.

³See Kendall Racquetball Investments, Ltd. v. Green Companies Inc. of Florida, 657 So. 2d 1187 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D1078c].

⁴The Court’s conclusion is supported by the fact that State Farm previously paid Dr. Eaton $600.00 for two hours of deposition testimony.

⁵Again, the Court has addressed costs incurred by the late William Corda by separate Order entered contemporaneously herewith.

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