26 Fla. L. Weekly Supp. 670b
Online Reference: FLWSUPP 2608REYEAttorney’s fees — Insurance — Contingency risk multiplier of 2.0 awarded — Expert witness fees — Taxable costs
JEANETTE MARIA REYES, Plaintiff, v. WINDHAVEN INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 16-CC-011133. November 29, 2018. Jared Smith, Judge. Counsel: Timothy A. Patrick, Patrick Law Group, P.A., Tampa, for Plaintiff.
FINAL JUDGMENT AWARDINGATTORNEY’S FEES AND COSTS
THIS CAUSE came before the Court for evidentiary hearing on October 22, 2018, on Plaintiffs Motion to Tax Attorney’s Fees and Costs pursuant to Fla. Stat. § 627.428. After observing the demeanor and credibility of the witnesses, weighing the testimony and other evidence presented, and being otherwise fully advised in the premises, it is hereby
ORDERED AND ADJUDGED as follows:
A. Introduction
1. This Court considered the arguments of counsel, parties’ written submissions in the record, testimony of Timothy Patrick, Esq., testimony of Ray Seaford, Esq., testimony of Scott Dutton, Esq., exhibits entered into evidence during the hearing, pleadings of record, together with applicable Florida law regarding attorney’s fees and contingency fee multiplier awards.
2. In reaching the findings contained in this judgment, the Court has considered the credibility and demeanor of the witnesses, weighed the evidence, and complied with the requirements of Florida Rule of Professional Conduct 4-1.5(b)(1) and (2), the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions, and applicable case law, including but not limited to, Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985) and Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d. 828 (Fla. 1990).
B. Reasonable Hourly Rate
3. The greater weight of the evidence presented demonstrated that the reasonable hourly rate is as follows: Timothy A, Patrick, Esq., $500.00 per hour
C. Reasonable Hours
4. The greater weight of the evidence presented demonstrated that the following number of hours are reasonable:
Timothy A. Patrick., Esq. – 83.4 hours.
D. Lodestar Amount and Contingency Risk Multiplier
5. In Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), the Florida Supreme Court adopted the federal lodestar approach for awarding reasonable attorneys’ fees, and discussed use of a multiplier. The Florida Supreme Court subsequently refined the standards for recovering a multiplier in Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990).
6. In Quanstrom, the Florida Supreme Court identified three categories of cases for purposes of applying a lodestar multiplier; (a) public policy enforcement cases, (b) tort and contract cases, and (c) family law, eminent domain, and estate and trust proceedings. Id. at 833-835,. This case falls within the “tort and contract” category.
7. The following 12 factors (also found in Florida Rule of Professional Conduct 4-1.5(b)(1)(A)-(H)) should be considered to determine a reasonable attorney’s fee:
. . . (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
Quanstrom, 555 So. 2d at 834.
8. Under the “tort and contract cases,” the trial court must also consider three additional factors when deciding whether to award a multiplier:
The second category concerns principally tort and contract cases. Here, we reaffirm the principles set forth in Rowe, including the code provisions, and find that the trial court should consider the following factors in determining whether a multiplier is necessary; (1) whether the relevant market requires a contingency fee multiplier to obtain competent counsel; (2) whether the attorney was able to mitigate the risk of nonpayment in any way; and (3) whether any of the factors set forth in Rowe are applicable, especially, the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client. Evidence of these factors must be presented to justify the utilization of a multiplier. We find that the multiplier is still a useful tool which can assist trial courts in determining a reasonable fee in this category of cases when a risk, of nonpayment is established.
Id.
9. As set forth, more fully below, the three Quanstrom factors for application of a multiplier have been satisfied in this case.
a. Whether the relevant market requires a contingency fee multiplier to obtain competent counsel.
Testimony confirmed that few, if any, attorneys handle cases involving denial of coverage based on material misrepresentation. Mr. Seaford was aware of no attorneys advertising for this type work, and he was not aware of anyone (except Mr. Patrick) who was willing to take these types of cases. Mr. Seaford also noted that these type of cases have a high likelihood of failure, involve small dollar amounts (as in this case which involved approximately $11,000), and require skilled counsel in order to achieve positive results. Additionally, due to the client’s inability to pay, the only hopes of recovery of a fee would be a successful result in the case combined with an oft-contested fee judgment. The testimony of Plaintiff’s expert was credible, and this Court adopts his testimony as set forth above as the findings of this Court. Accordingly, this Court finds the relevant market conditions require a contingency fee multiplier to obtain competent counsel.
b. Whether the attorney was able to mitigate the risk of nonpayment in any way.
Mr. Seaford testified the client was financially unable to pay for attorney services in this case, which was typical of these types of cases. In addition, attorney’s fees to pursue the claim would far exceed the small amount in controversy. The testimony of Plaintiff’s expert was credible, and this Court adopts his testimony as set forth above as the findings of this Court. Accordingly, this Court finds Plaintiff’s counsel was unable to mitigate the risk of non-payment in any way.
c. Whether any of the factors set forth in Rowe are applicable, especially, the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client.
This Court has analyzed all Rowe factors in reaching its findings and conclusions in relation to the lodestar calculation and multiplier determination, and finds several Rowe factors applicable in this case. As noted previously, the amount involved in controversy was minimal in comparison to the cost of litigation. The issues presented in the case were not novel, but the defense of material misrepresentation was circa impermeable and difficult to overcome. The result obtained was outstanding considering the strength of the defense, namely that the policy was void due to material misrepresentation. Plaintiff ultimately obtained a complete victory on summary judgement despite this defense. This Court finds there existed a contingency fee arrangement between Plaintiff and her counsel, Mr. Patrick. Mr. Patrick is an attorney with over 20 years of litigation experience, has an excellent reputation in the legal community, and is well versed in PIP law. Considering the strength of the defense in this case of material misrepresentation, Mr. Seaford described the case as a “legal dog.” This Court agrees and finds the case was certainly an undesirable one from the outset. Having several Rowe factors present as noted above, this Court finds the third prong of Quanstrom has been satisfied.
10. Having satisfied the three factor test of Quanstrom, this Court finds application of a multiplier is appropriate in this case.
11. Under the guidelines set forth in Quanstrom, the amount of the multiplier awarded is determined as follows:
(a) If the trial court determines that success was more likely than not at the outset, it may apply a multiplier of 1.0 to 1.5;
(b) if the trial court determines that the likelihood of success was approximately even at the outset, it may apply a multiplier of 1.5 to 2.0; and
(c) if the trial court determines that success was unlikely at the outset of the case, it may apply a multiplier of 2.0 to 2.5.
12. The appropriate time frame for determining a multiplier is when the party is seeking the employ of counsel. Michnal v. Palm Coast Development, Inc., 842 So, 2d 927, 934 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D688b].
13. The First District Court of Appeal has held that expert testimony is sufficient to support imposition of a multiplier without the personal testimony of the plaintiff. Massie v. Progressive Express Insurance Co., 25 So. 3d 584, 585 (Fla. 1st DCA 2009) [34 Fla. L. Weekly D2364b]. The Second District Court of Appeal recently acknowledged the Massie holding in Citizens Property Insurance Corp., v. Anderson, 241 So. 3d 221 (Fla. 2d DCA 2018) [43 Fla. L. Weekly D353b].
14. The Defendant alleged and maintained that the named insured failed to disclose the names of individuals living at her residence on the application for insurance, and that this was a material misrepresentation on the insurance application giving rise to the rescission of the insurance policy. The Plaintiff’s expert witness testified such cases are very difficult and risky, and that the likelihood of success is around 10% at best. The testimony of Plaintiff’s expert was credible, and this Court adopts the testimony as set forth above as the finding of this Court.
15. This Court finds that the greater weight of the evidence presented establishes that the Plaintiffs’ likelihood of success at the outset of the representation was as follows:
___ Success was more likely than not at the outset (1.0 to 1.5)
___ Success was approximately even at the outset (1.5 to 2.0)
X Success was unlikely at the outset (2.0 to 2.5)
Under the facts and circumstances of this case, the greater weight of the evidence demonstrates that a reasonable and appropriate multiplier to be awarded to the Plaintiff in this case is 2.0.
E. Expert Witness Fees
16. The Court finds that the Plaintiff is entitled to an award of a reasonable fee for the services rendered by his expert witness, Ray Seaford, Esq., in the amount of $4,345.00, based upon a reasonable rate of $550.00 per hour, and a reasonable amount of time of 7.9 hours.
F. Taxable Costs
17. The parties stipulated to taxable costs of $1,119.64
G. Total Amount of Attorney’s Fees, Expert Witness Fees and Costs Awarded Under Section 627.428, Fla. Stat.
18. Having considered the testimony and evidence in light of all the Rowe factors as set forth above as well as other applicable caselaw cited by the parties, the total reasonable attorney’s fees and costs awarded to Plaintiff are as follows:
| Attorney/Expert Witness | Reasonable Hourly Rate | Reasonable Number of Hours | Total |
| Timothy A. Patrick, Esq. | $500.00 | 83.4 | $41,700.00 |
| Ray Seaford, Esq. | $550.00 | 7.9 | $4,345.00 |
| Total Reasonable Lodestar Amount | $46,045.00 | ||
| Contingency Fee Multiplier | 2.0 | ||
| Total Reasonable Attorney’s Fees, after application of Contingency Fee Multiplier (to the fees of Mr. Patrick only) | $83,400.00 | ||
| Reasonable Expert Witness Fees | $4,345.00 | ||
| Stipulated Taxable Costs | $1,119.64 | ||
| Total Reasonable Attorney’s Fees and Costs | $88,864.64 |
19. Final judgment is hereby awarded in favor of the Plaintiff, Jeanette Maria Reyes, who shall recover from the Defendant, Windhaven Insurance Company, the sum of $88,864.64 in reasonable attorney’s fees and costs, that shall bear interest at quarterly interest rate as prescribed by Fla. Stat. § 55.03, for which let execution arise.
