21 Fla. L. Weekly Supp. 206a
Online Reference: FLWSUPP 2102ROHRInsurance — Personal injury protection — Attorney’s fees — Contingency risk multiplier — Where insured had no difficulty retaining counsel without promise of contingency risk multiplier, application of multiplier is not appropriate — Neither fact that insured retained and terminated other attorneys prior to current attorney’s representation nor fact that insured was difficult and demanding client warrants application of multiplier — Because insured’s counsel did not prevail on issue of multiplier, costs associated with litigating multiplier issue are not awarded — Fees and costs associated with litigating amount of fees are not awarded
ROHRBACHER, MICHAEL, Plaintiff, v. GARRISON PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 10-CC-2026-20P-S. October 2, 2013. Honorable Jerri L. Collins, Judge. Counsel: Rutledge Bradford, Bradford Cederberg, P.A., for Plaintiff. Wendy L. Pepper, Andrews & Manno, P.A., Tampa, for Defendant.
[Reversed by circuit court. Second-tier review by Distsrict Court of Appeal, 41 Fla. L. Weekly D2609a; DCA opinion quashed, 43 Fla. L. Weekly S185c.]
FINAL JUDGMENT ON ATTORNEYS FEES AND COSTS
This matter came before the Court on August 14, 2013 upon Plaintiff’s Motion for Attorneys Fees and Costs. This lawsuit was filed by the Plaintiff, Michael Rohrbacher, (“Rohrbacher”) in May 2010 against his automobile insurance company, Garrison Property & Casualty Insurance Company (hereinafter “Garrison”) seeking payment of disputed Personal Injury Protection (“PIP”) and Medical Payments coverage pursuant to a contract of insurance issued by Garrison. When the lawsuit was filed, Rohrbacher was represented by Adam Saxe, Esquire of The Jeffrey M. Byrd law firm. In September 2011 the Bradford Cederberg law firm substituted in as counsel for Rohrbacher.
In October 2012, following the settlement of Rohrbacher’s Uninsured Motorist case, Garrison confessed judgment in this case and stipulated to Plaintiff’s counsel’s entitlement to reasonable attorney’s fees and costs. Prior to the attorney fee and cost hearing, the parties stipulated to the reasonable amount of hours expended by the Bradford Cederberg firm — 68.5 hours — attributable as follows:
Rutledge M. Bradford — 32.0 hours
Robert D. Bartels — 31.5 hours
Steven Dell — 5.0 hours
Prior to the attorney fee and cost hearing, the parties also stipulated to a portion of the costs — $539.00 incurred during the litigation portion of the case, prior to Defendant’s confession of judgment and stipulation to entitlement to reasonable attorney’s fees and costs. Therefore, the remaining issues to be decided by the Court are the reasonable hourly rates of the attorneys involved, whether any post-confession costs are to be awarded and whether or not the facts of this case give rise to a fee multiplier.
REASONABLE HOURLY RATES
At the fee hearing, this Court heard testimony from Rutledge M. Bradford, Esquire and Robert D. Bartels, Esquire regarding their respective backgrounds and experience. The Plaintiff also presented testimony from their retained expert, Kevin Weiss, Esquire on those issues. Ms. Bradford testified that based on her experience and prior Court Orders1 she was seeking $500 per hour for herself and $350 per hour for Mr. Dell. Mr. Bartels testified that based on his experience and one (1) prior Court Order he was seeking $450 per hour. Mr. Weiss opined that $500 per hour was reasonable for Ms. Bradford, $450 per hour was reasonable for Mr. Bartels and that a range of $300-$350 per hour was reasonable for Mr. Dell.
The Defendant presented the testimony of its expert, Ken Hazouri, Esquire. Mr. Hazouri testified that, despite those prior Court Orders, a reasonable hourly rate for Ms. Bradford is between $350-$400 per hour, a reasonable hourly rate for Mr. Bartels is between $300-$350 per hour, and a reasonable hourly rate for Mr. Dell is between $200-$250 per hour. Mr. Hazouri testified that, among other factors, he was mindful of the concerns expressed by the 5th District Court of Appeals in Progressive Exp. Ins. Co. v. Schultz, 948 So. 2d 1027 (Fla. 5th DCA 2007) [31 Fla. L. Weekly D2610a] relating to hourly rates that prevail in the Central Florida market when forming his opinions.2 Consistent with those concerns, Mr. Hazouri also testified that he has knowledge of the hourly rates charged to, and actually paid by, clients in the Central-Florida market for very complex commercial litigation involving amounts in controversy of millions of dollars, and that those rates are significantly less than the hourly rates Rohrbacher’s attorneys are requesting to be paid in this lawsuit.
TAXABLE COSTS
In addition to the stipulated costs, Plaintiff is seeking $4,665.88 in taxable costs. The Plaintiff asks for $1,313.85 for copies of deposition transcripts that were taken after Defendant confessed judgment in the underlying dispute and stipulated to Plaintiffs counsel’s reasonable attorney’s fees and costs.
Rohrbacher also seeks reimbursement for two (2) separate airline tickets and rental cars for his travel expenses to appear at his deposition related to his counsel’s claim for a fee multiplier and for his attendance at the attorney fee and cost hearing.3 Rohrbacher testified that his airfare and rental car to appear for his deposition was $1,536.03. He produced his flight itinerary in support of that claim. He also testified that the cost of his flight and rental car to appear for the fee hearing was $1,816.00. He did not produce any supporting documentation to substantiate that claim.
The Defendant argued that travel expenses of the parties are not taxable as they do not appear on the Uniform Guide for Taxation of Costs. Defense counsel also argued that but for Plaintiff’s counsel’s request for a fee multiplier none of the depositions would have occurred and, thus, Mr. Rohrbacher would not have had to travel back to Central Florida for the hearing.
CONTINGENCY RISK MULTIPLIER
At the hearing, Plaintiff’s counsel presented testimony that this case warranted a 2.5 contingency risk multiplier in addition to the lodestar amount being sought. Ms. Bradford testified that she got this case from the Jeffrey M. Byrd law firm after suit was already filed and the written discovery had been completed. Ms. Bradford testified that the facts of this case, specifically the six (8) month gap in treatment from Rohrbacher’s date of accident until his first known visit with a medical professional, Garrison’s complete denial of all bills submitted on Rohrbacher’s behalf based on peer reviews, Rohrbacher’s personality, extreme involvement and excessive communications with her and Mr. Bartels during the litigation, and the fact that multiple other attorneys had decided to end their attorney/client relationship with Rohrbacher after being formally retained by him, made this case worthy of a contingency risk multiplier.
Plaintiff’s expert, Kevin Weiss, concurred with Ms. Bradford and testified that a multiplier of 2.0 to 2.5 would be warranted. Mr. Weiss testified that the application of the multiplier is determined at the time Ms. Bradford got the case and that he would not have taken the case, nor did he know anyone else that would have taken the case without a multiplier.
In further support of Plaintiff’s counsel’s claim for a multiplier, Rohrbacher testified that he considers himself “high maintenance” and has been under psychiatric care since he was nine (9) years old. Rohrbacher testified that he had retained attorneys prior to being referred to Rutledge Bradford by Adam Saxe, Esquire of the Jeffrey M. Byrd law firm. Mr. Rohrbacher also testified that some of his previous attorneys ended their contractual relationships with him and that he ended some of the relationships on his own. Plaintiff’s own expert, Kevin Weiss agreed that at least two (2) of the previous attorneys had been fired by Rohrbacher. Rohrbacher also testified that no other attorneys were consulted relating to his claim. Furthermore, at no time did Rohrbacher discuss the concept of a contingency fee multiplier with any of his attorneys, including Ms. Bradford at the time he signed the contingency fee agreement with her in September 2011. In fact, Rohrbacher testified that he did not discuss a fee multiplier with Ms. Bradford until later in her representation of him, when he researched the issue on his own.
Defendant’s expert, Ken Hazouri testified that the lodestar amount would be a reasonable fee and that no contingency risk multiplier was warranted in this case. Mr. Hazouri based his opinions on the well settled principal of law that there is a “strong presumption” that the lodestar represents the “reasonable fee” as stated in Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546 (1986) and cited by Progressive Exp. Ins. Co. v. Schultz , 948 So. 2d 1027 (Fla. 5th DCA 2007) [31 Fla. L. Weekly D2610a]. Mr. Hazouri also noted the factors set out by the Florida Supreme Court when evaluating the application of a multiplier as stated in Standard Guarantee Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990), the most prominent of which is the ability to obtain competent counsel without a multiplier. See Schultz, 948 So.2d at 1030.
Mr. Hazouri testified that, similar to the facts in Schultz, there was no evidence that Rohrbacher had any difficulty obtaining competent counsel to represent him without a multiplier. Mr. Hazouri testified that the evidence presented suggests that Mr. Rohrbacher had no difficulty obtaining competent counsel to represent him including the Bradford Cederberg all without any discussion about a contingency fee multiplier.
Similar to Plaintiff’s own expert, Mr. Hazouri opined that the application of a fee multiplier is determined at the time representation is sought, and not throughout the course of the litigation. Mr. Hazouri cited to the Fourth District Court of Appeals decision in Michnal v. Palm Coast Development, 842 So.2d 927 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D688b]. In Michnal the appellate court reversed a final judgment of attorney’s fees that awarded a 1.75 multiplier even though the multiplier was not warranted at the inception of the representation. The 4th DCA held that relying on “Quanstrom and its progeny, the appropriate time frame for determining whether a multiplier is ‘necessary’ is when the party is seeking the employ of counsel.” See Michnal at 934.
Finally, Mr. Hazouri opined that this case was not an extraordinary PIP case, but rather an ordinary PIP case where the question to be answered was whether or not the treatment at issue was reasonable, related and necessary with respect to the motor vehicle accident. He also opined that nothing about Rohrbacher’s personality or apparent “high maintenance” idiosyncrasies would warrant a multiplier. Mr. Hazouri relied upon Baratta v. Valley Oak Homeowners’ Assoc. at the Vineyards, Inc., 928 So.2d 495 (Fla. 2nd DCA 2006) [31 Fla. L. Weekly D1348c], “In addition, work that is necessitated by the client’s own behavior should more properly be paid by the client than by the opposing client”, citing Guthrie v. Guthrie, 357 So.2d 247 (Fla. 4th DCA 1978) “The fact that appellant was very emotional and persistent in nature does not mean that all of the time spent with her was reasonably necessary and that is the test in assessing fees against the opposing party.”CONCLUSION
The Court has reviewed the pleadings, evidence and testimony presented at the fee hearing, along with all applicable case law presented. Applying the law to the facts presented to the Court, the Court hereby finds as follows:
1. The reasonable hourly rate for Rutledge Bradford is $450 per hour.
2. The reasonable hourly rate for Robert Bartels is $350 per hour.
3. The reasonable hourly rate for Steven Dell is $250 per hour.
4. The Court concludes that based upon the undisputed evidence presented at the hearing, Rohrbacher and the Bradford Cederberg firm are not entitled to have a contingency-fee multiplier applied to the lodestar fee award. The determination of their entitlement to a multiplier is primarily guided by the binding authority of Progressive Exp. Ins. Co. v. Schultz, 948 So.2d 1027 (Fla. 5th DCA 2007) [31 Fla. L. Weekly D2610a]. In that opinion, the Fifth District Court of Appeal issued firm guidance on the award of multipliers in PIP suits like the instant case. First, the Schultz court explained that the “federal lodestar approach establishes a ‘strong presumption’ that the lodestar represents the “reasonable fee.” See Id. at 1030. The court further held that the issue of “(w)hether the relevant market requires a contingency fee multiplier to obtain competent counsel” is the primary factor for determining entitlement to a multiplier,” and “it must be proved that but for the multiplier, plaintiff could not have obtained competent counsel in the area.” Id. at 1030 (quoting Tetrault v. Fairchild, 799 So.2d 226, 234 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D1854d], J. Harris concurring).
In the instant case, the evidence was undisputed that Rohrbacher formally and successfully retained 7-9 different law firms to represent him on PIP, bodily injury, and uninsured motorist claims arising out of the subject automobile accident, including the Bradford Cederberg firm. Rohrbacher did not have a discussion about the award of a multiplier with anyone at those law firms before retaining them as his counsel. Rohrbacher had no difficulty retaining counsel without the promise of a multiplier. Pursuant to Schultz, that fact compels denial of the multiplier requested by the Bradford Cederberg firm. The Bradford Cederberg firm’s position that Rohrbacher’s prior attorney/client relationships were terminated after formal retention justifies the award of a multiplier is incorrect. First, Michnal v. Palm Coast Development, 842 So.2d 927 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D688b] holds that events which are negative to a client’s case and occur after an attorney has been retained do not create a right to a multiplier when none existed at the time of the attorney’s retention. There is no contrary authority from Florida’s District Courts of Appeal or the Florida Supreme Court, and, therefore, Michnal is binding on this Court. Pursuant to Michnal, the fact that events occurred after Mr. Rohrbacher’s formal retention of his former attorneys, which caused the attorney/client relationship to be terminated, cannot, as a matter of law, support the award of a multiplier to the Bradford Cederberg firm.
Second, the undisputed evidence established that in some instances Mr. Rohrbacher himself, not the attorneys, terminated the attorney/client relationship. In those cases, Mr. Rohrbacher successfully retained counsel and could have continued with the attorney/client relationship but for his own decision to terminate the relationship.
Both Rohrbacher and Ms. Bradford testified that Rohrbacher was an extremely difficult and demanding client. The purpose of a multiplier is not to assist a person who has difficulty retaining counsel due to his own idiosyncrasies. Garrison should not be punished with the imposition of a multiplier just because Rohrbacher was a difficult client. See Baratta v. Valley Oak Homeowners’ Assn at the Vineyards. Inc., 928 So.2d 495, 499 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D1348c] (“(W)ork that is necessitated by the client’s own behavior should more properly be paid by the client than by the opposing party.”); Guthrie v. Guthrie, 357 So.2d 247 (Fla. 4th DCA 1978) (“Work done that is not reasonably necessary but performed to indulge the eccentricities of the client should more properly be charged to the client rather than the opposing party.”).
5. Since no multiplier is being awarded to the Plaintiff’s counsel, they are not considered the prevailing party on that issue and therefore no additional costs beyond the stipulated costs of $539.00 will be awarded. As there are no attorney’s fees to be awarded for litigating over the amount of fees to be assessed, the same holds true for costs incurred litigating over the amount of fees. See State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830 (Fla. 1993).
6. Based on the stipulated amount of reasonable hours noted, the total lodestar amount to be awarded is $ 26,675 (Rutledge Bradford – $450 x 32.0 hrs = $14,400 Robert Bartels – $350 x 31.5 hrs. = $ 11,025 and Steven Dell – $250 x 5.0 hrs $1,250).
7. The Plaintiff is entitled to pre-judgment interest on the lodestar amount of $26,675 in fees plus $539.00 in costs from the date Defendant confessed judgment, October 3, 2012 at the statutory rate of 4.75%.
8. Plaintiff’s expert, Kevin Weiss reasonably expended 4 hours reviewing the file, preparing and testifying at the fee hearing. A reasonable hourly rate for Mr. Weiss is $400 per hour. Therefore he is entitled to a total expert witness fee of $ 1,600.
It is hereby ORDERED and ADJUDGED that Defendant Garrison Property & Casualty Ins. Co. shall pay the following:
1. Reasonable attorney’s fees and costs totaling $27,214 plus pre-judgment interest payable to Bradford Cederberg, P.A.
2. Expert witness fee of $1,600 payable to Weiss Legal Group.
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1Attorney fee Orders from prior cases were presumably based upon the evidence presented before those Courts, and while they may have some persuasive value, the hourly rates set forth herein were determined by the testimony and evidence presented in this case, along with the applicable law and the factors contained within Rule 4-1.5(b) of the Rules Regulating the Florida Bar.
2“We, too, are aware of the fees that prevail in the Central Florida market. The fee approved here, $400 an hour before the multiplier, certainly pushes the upper limit for hourly fees, even in the most complex litigation. . . We are troubled by the lodestar fee awarded by the county court, particularly the hourly rate deemed to be reasonable. . .” See Schultz at p. 1033, FN 4 & 5.
3Mr. Rohrbacher testified that he moved to Hawaii in 2008, two (2) years prior to this lawsuit being filed.
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