20 Fla. L. Weekly Supp. 164a
Online Reference: FLWSUPP 2002LUCKInsurance — Personal injury protection — Attorney’s fees — Amount — Number of hours claimed by attorney and paralegals is reduced to eliminate time spent on secretarial and clerical work — Continency risk multiplier was required to obtain competent counsel in PIP cases and chance of success in case was even at outset — Multiplier of 1.5 is appropriate
PACE CHIROPRACTIC CLINIC, INC., a/a/o Eugene W. Luck, Plaintiff, vs. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 1st Judicial Circuit in and for Escambia County. Case No. 2010 SC 001212, Division 5. October 18, 2012. Pat Kinsey, Judge. Counsel: Cristi A. Malone, for Plaintiff. David Hwalek, for Defendant.
FINAL JUDGMENT FOR ATTORNEY’SFEES AND COSTS
At a hearing in open court on October 2, 2012, the parties appeared through counsel with their respective expert witnesses to resolve the issue of attorney’s fees and costs in this now resolved PIP case. The underlying case settled within about two weeks of the pre-trial conference in May, 2010, and defendant issued its check for payment in full on June 18, 2010 almost exactly 4 weeks after the pre-trial conference. It has been very difficult getting the parties together to resolve the attorney’s fee issue.
It is undisputed that plaintiff is entitled to attorney’s fees and costs. The parties have stipulated to reasonable costs in the amount of $192.58. At issue is a reasonable number of hours for both the plaintiff’s attorney and paralegal support as well as a reasonable fee for each.
Plaintiff seeks 45.7 hours in attorney’s time at $275.00/hour plus 2.2 hours at $65.00/hour for one paralegal and 2.1 hours at $85.00 for the other paralegal. Plaintiff seeks a multiplier of 1.5-2%. Defendant insists that only 18.2 hours of attorney time are reasonable and only $225.00/hour. As to paralegal support, the defendant argues that only .1 hour is reasonable and only $65.00h/hour. The defendant also argues that no multiplier should be used in this case. Plaintiff presented Robert N. Heath, Jr. as their expert witness to establish a reasonable rate and time for the work performed in this case by the members of Emmanuel, Sheppard & Condon, attorneys for the plaintiff. The defendant brought Craig Morris, a very experienced insurance defense attorney from Alabama to present their position.
Having heard the argument of counsel, reviewed the submitted exhibits, reviewed the case law presented, reviewed the clerk’s file, and considered presentation of testimony during this evidentiary hearing, the court makes the following determinations in accord with Florida Patients Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), Standard Guaranty Insurance Company v. Quanstrom, 555 So.2d 828 (Fla. 1990), Bell v. U.S.B. Acquisition Co., Inc., 734 So.2d 403 (Fla. 1999) [24 Fla. L. Weekly S220a], Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air et al., 483 U.S. 711 (1987), Progressive Express Insurance Company v. Schultz, 31 FLW D2610 (Fla. 5th DCA 2007) [31 Fla. L. Weekly D2610a], Progressive v. Schultz, 948 So.2d 1027 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D548b], The Florida Rules of Professional Conduct Rule 4-1.5(b), United Auto. Ins. Co. v. Garrido, Case No. 06-524 (11th Cir. Ct. Dec. 5, 2007), Eckhardt v. 424 Hintze Mgt., LLC Case No. lD07-56 (Fla. 1st DCA December 17, 2007) and Massie v. Progressive Express Insurance Company, 25 So.3d 584 (Fla. 1st DCA 2009) [34 Fla. L. Weekly D2364b].
The court first heard from Mr. Heath. Mr. Heath has been practicing for more than thirty-one years including more than 100 jury trials. For the past eleven years, Mr. Heath has dedicated more than 50% of his practice to PIP cases. He is board certified, AV rated and known as one of “Florida’s Super Lawyers” for the past five years as well as being designated as one of the legal elite for the past two years. He is a published author on PIP issues, speaks often at PIP seminars, has been selected to lobby in Tallahassee regarding PIP issues, and is one of only two or three attorneys in the Escambia-Santa Rosa two-county area who will even accept PIP cases on a regular basis anymore. Multiple courts throughout the Panhandle of Florida and at least one court in Tallahassee, have qualified Mr. Heath as an expert in the area of PIP law awarding him $425.00/hour to $450.00/hour for his testimony. In addition, as a further asset to his clients, he is a certified mediator with a thriving practice in that area reflecting well on his reputation in the legal community. Mr. Heath testified that he has been routinely awarded $450.00/hour for his work on PIP cases throughout the Panhandle area of Florida, and the parties have stipulated that is a reasonable rate for his expert testimony in this case. Mr. Heath also testified that he would not handle PIP cases without the expectation of a multiplier and the few remaining attorneys who will accept PIP cases would not do so either without the expectation of a multiplier.
Mr. Heath explained how PIP has become a very undesirable area of the law for specialization due to multiple factors. First, PIP law is ever evolving. Every couple of years, the legislature makes significant changes in PIP law. As a result, appellate guidance runs far behind PIP litigation and attorneys are forced to accept cases in an ever changing environment where analyzing cases from the outset can be treacherous at best. Second, typically there is more time spent by the attorney and staff in determining a reasonable number of hours and reasonable rate of compensation than in litigating the underlying case. That is, it is not unusual that once the case settles or is resolved through summary judgment or even at trial, that it will take twice as many hours in uncompensated time to resolve the attorney’s fee issue. Therefore a PIP lawyer must wait a significant number of months or even years to collect a fee in a PIP case making the actual hourly rate a fraction of the number eventually established by a court. There is no other type of case which presents such delays in compensation for an attorney. Therefore, the amount of time necessary to keep current with the ever changing law, the amount of time litigating over a typically small amount of money at issue, and the delay in final payment for services rendered combine to make PIP law an area where, out of approximately 800 lawyers in the Escambia/Santa Rosa legal community, only two or three attorneys will now accept PIP cases on a regular basis. Even just six years ago, there were at least 8-10 attorneys who were available to provide competent PIP legal representation. Not so anymore.
From the outset, this case presented two diverse issues. First there was a Disclosure and Acknowledgment issue which was not yet resolved at the time this case was accepted. Second, certain bills included massage therapy. At the time the service was provided, plaintiff did not yet have the appropriate license. Although USAA has raised this defense in other cases, this case settled without USAA raising the licensing issue.
Mr. Heath reviewed the plaintiff’s file, counsel’s deposition, time records and his “expert” file and opined that a reasonable number of hours for plaintiff’s attorney would be 45.7 hours with a reasonable rate of $275.00/hour. He testified that counsel’s paralegal’s time of 2.2 hours at $65.00/hour plus 2.1 hours at $85.00/hour would be reasonable.
Mr. Heath next analyzed the multiplier considerations and testified that the likelihood of success at the outset of the case was even at best. Because the issue of the Disclosure and Acknowledgment form was still in flux with no appellate guidance when this case was accepted and because §627.736(4)(h), Florida Statutes releases an insurer from any responsibility to pay if there is “fraud” (such as failure to have the appropriate license for massage therapy), the court agrees that the likelihood of success was even at best.
On the other hand, Mr. Morris disagreed with Mr. Heath’s assessment and argued that the court should severely limit the number of hours for Ms. Clark’s time from 45.7 down to 18.2. In addition, Mr. Morris testified that the only compensable paralegal time was .1 hour which would be reimbursed at only $65.00/hour.
Mr. Morris found Ms. Clark’s timekeeping records to be poorly articulated using “lump block billing” which tends to obscure the nature of the actual work performed. He stated that it was impossible to figure out if Ms. Clark’s work was reimbursable because of vague and/or nebulous references to what might be merely clerical work. The court agrees that Ms. Clark included a few references to what could only be described as secretarial/clerical tasks in her time records. However, on the other hand, it is obvious that she also failed to include time for attending the Pre-Trial Conference in court on May 12, 2010, despite the official court records showing she was present. Therefore the court finds that 44.7 hours are reasonable attorney’s hours and CAW’s paralegal time should be 1.7 hours at $65.00/hour and HHT’s paralegal time was reasonable at 2.1 hours for $85.00/hour. The adjustments made were for what was clearly secretarial/clerical work rather than paralegal and/or legal work.
Mr. Morris urges the court to find that a multiplier is not required to attract competent attorneys to the PIP field. He fails to recognize or acknowledge the diminishing number of attorneys who will even accept these cases on a regular basis with the expectation of a multiplier. The court agrees with Mr. Heath that PIP cases fall within a very unique area of the law. There is no comparable area of the law which could be used to provide a backdrop for finding or encouraging competent attorneys to accept the work or in determining reasonable hours and fees for handling PIP cases. Furthermore, like this case which was settled on June 18, 2010, attorney’s who accept these cases will spend far more time litigating the fee than on the underlying case. This case settled within two weeks of the pre-trial conference (four weeks to get the settlement check), but it is more than two years later and the attorney’s fee has not yet been paid. Furthermore, it is the norm, rather than the exception, that PIP cases move directly into the appellate calendar from the County Court. . .if not on the underlying issue(s), then certainly on the attorney’s fee issue. Far too many lawyers have been driven out of the PIP arena because they were unwilling to wait years to be paid after the case was “resolved.” This is especially true because the attorney is not entitled to compensation for the vast number of hours spent litigating the attorney’s fee determination.
Therefore the court finds that a multiplier is required. See Massie v. Progressive Express Insurance Company, 25 So.3d 584 (Fla. 1st DCA 2009) [34 Fla. L. Weekly D2364b]. Because this case falls within the even at best category, with a multiplier of 1.5 to 2.0, the court finds that 1.5 is the appropriate multiplier under the totality of the considerations.
ORDERED AND ADJUDGED that plaintiff shall recover from defendant $4,612.50 as reimbursement for Mr. Heath’s expert fee (7.55 hours + hearing time of 2.7 hours at $450.00/hour) which shall accrue interest at the rate of 4.75% per annum for which let execution issue.
FURTHER ORDERED that plaintiff shall recover from defendant $12,581.50 times a multiplier of 1.5 for a total of $18,872,25 which is the product of 44.7 hours at $275.00 and 2.1 hours at $85.00/hour and 1.7 hours at $65.00/hour. Plaintiff is also entitled to stipulated costs of $192.58 and pre-judgement interest of $2,112.96 for a total of $21,177.76 which shall accrue interest at the rate of 4.75% per annum for which let execution issue.
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