23 Fla. L. Weekly Supp. 353a
Online Reference: FLWSUPP 2304PATTInsurance — Personal injury protection — Attorney’s fees — Medical provider is entitled to attorney’s fees up to date of fee hearing despite fact that benefits were settled one month earlier where insurer did not clearly and unequivocally acquiesce to provider’s entitlement to attorney’s fees at time of benefit settlement
NEW SMYRNA IMAGING, LLC, as assignee of Sadie Patterson, Plaintiff, vs. DAIRYLAND INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2013-22052-CONS. June 8, 2015. Honorable Shirley A. Green, Judge.
ORDER AND FINAL JUDGMENT ON PLAINTIFF’SMOTION FOR ATTORNEYS’ FEES AND COSTS
THIS CAUSE having come before the undersigned Judge of the County Court upon a fee hearing conducted in New Smyrna Beach, Florida on Wednesday, May 27, 2015 at 1:30 p.m., having reviewed the pleadings, heard argument of counsel, received expert and fact witness testimony and being otherwise fully advised in the premises, the Court makes the following findings of fact and conclusions of law,
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. The Plaintiff filed its Complaint for breach of contract on July 16, 2013. The Plaintiff’s Complaint alleged that Claimant, Sadie Patterson was involved in an automobile accident on March 13, 2013 and thereafter submitted to care and treatment at the Plaintiff’s medical facility.
2. The Plaintiff’s Complaint further alleged that Claimant, Sadie Patterson executed an assignment of benefits in favor of the Plaintiff.
3. The Plaintiff’s Complaint further alleged that the Plaintiff timely submitted its bill for care and treatment of Claimant Sadie Patterson to the Defendant but that the Defendant did not pay the full amount owed under the subject insurance policy.
4. The Plaintiff’s Complaint therefore alleged breach of contract and requested that — among other relief — the Court award attorneys’ fees and costs pursuant to Fla. Stat. §627.428.
5. After initially contesting and litigating the matter, the Defendant ultimately agreed to settle the benefits.
6. During the fee hearing on May 27, 2015, the Court received sworn testimony from Attorney Amanda Reher, one of the Plaintiff attorneys.
7. Attorney Amanda Reher testified — under oath — that she received the Defendant’s benefits settlement check on April 21, 2015. However she did not believe that the entitlement to attorney fees was stipulated because it was not stated unequivocally in any correspondence from the Defendant.
8. The Court that a reasonably hourly rate for Attorney Mark A. Cederberg be $500 per hour; that a reasonable hourly rate for Attorney Amanda Reher be $475 per hour and that a reasonable hourly rate for Attorney Steven G. Dell be $475 per hour.
9. Both the Plaintiff and Defendant provided the Court with argument and citations to case law.
10. The Plaintiff argued that it was entitled to fees and costs up to May 27, 2015 as it alleged that the Defendant did not “unequivocally stipulate” that the Plaintiff was entitled to fees and costs.
11. The Defendant argued that once it agreed to settle the Plaintiff’s benefits, the Plaintiff was at that time entitled to fees and costs by operation of law.
12. In support of its position that it is entitled to fees up to May 27, 2015, the Plaintiff cited the following Florida County Court cases: Francisco Gomez, M.D., P.A. (a/a/o Brandy Williams) v. Progressive Express Ins. Co., 13 Fla. L. Weekly Supp. 98a (13th Jud. Cir. Hillsborough Cty. 2005); Physical Medicine Center, Inc. (a/a/o Anne Marie Garcia) v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 1182a (13th Jud. Cir. Hillsborough Cty. 2005) and Francisco Gomez, M.D., P.A. (a/a/o Mohamed Koraitim) v. Nationwide Mut. Fire Ins. Co., 11 Fla. L. Weekly Supp. 457c (13th Jud. Cir. Hillsborough Cty. 2004). This court adopts the “bright line rule for entitlement” and finds that the party’s acquiescence or concession to a party’s entitlement to attorneys’ fees must be clear and unequivocal form the record.
13. Both parties agree that the Florida Supreme Court case of State Farm Fire & Casualty Company v. Palma, 629 So. 2d 830 (Fla. 1993) directs that a party cannot recover attorneys’ fees for the time spent litigating the amount of fees; however both parties agree that this case does allow that a party can recover fees for the time it spends litigating its entitlement to fees.
14. The Court finds that based upon the foregoing, the benefits were settled on April 21, 2015.
15. However, the Court finds that Plaintiff’s entitlement to attorneys and costs is up to and including May 27, 2015.
16. The Court has also considered the factors enumerated in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985).
17. Based on the foregoing, the Court finds that Attorney Mark Cederberg reasonably expended 1.0 hours.
18. Based on the foregoing, the Court finds that Attorney Steve Dell reasonably expended 10.8 hours.
19. Based on the foregoing, the Court finds that Attorney Amanda Reher reasonably expended 67.6 hours. This includes an additional 4 hours preparing to argue the issue of entitlement.
20. The Loadstar amount is calculated as follows:
| Attorney Mark A. Cederberg: | 1.0 hours x $500/hr | = | $500.00 |
| Attorney Steven G. Dell: | 10.8 hours x $475/hr | = | $5,130.00 |
| Attorney Amanda H. Reher: | 67.6 hours x $475/hr | = | $32,110.00 |
| Total Lodestar Amount: | $37,740.00 |
21. The Plaintiff did not ask for and will not be awarded a multiplier.
22. The Court finds that the Plaintiff’s fee expert, Attorney Kimberly Simoes reasonably expended 6.5 hours in this matter and that her requested hourly rate of $500.00 is reasonable.
23. The Court therefore awards Attorney Kimberly Simoes $3,250.00.
24. The Court further finds that the Plaintiff is entitled to $242.55 in costs.
25. The Court further finds that the Plaintiff is entitled to prejudgment interest on attorneys’ fees and costs from May 27, 2015 at the rate of 4/75%.
WHEREFORE, it is ORDERED AND ADJUDGED that
1. The Plaintiff’s Motion For Attorneys’ Fees and Costs is GRANTED; and
2. The Plaintiff shall take from the Defendant the total sum as shown and computed below as attorneys’ fees and costs for the prosecution of this claim
| Attorneys’ Fees | $37,740.00 |
| Costs | $242.55 |
| Expert Witness Fees | $3,250.00 |
| Total Sum*: | $41,232.55 plus interest until and including May 27, 2015 |
*The total sum shall bear interest at the prevailing statutory interest rate of 4.75% per year from this date through December 31 of this current year, for which let execution issue. Thereafter, on January 1 of each succeeding year until the judgment is paid, the interest rate will adjust in accordance with section 55.03, Florida Statutes.
