26 Fla. L. Weekly Supp. 24a
Online Reference: FLWSUPP 2601BURKInsurance — Attorney’s fees — Amount — Reasonable hourly rate
JOHN FERRELL BURKETT and CINDY LANCASTER STEWART, Plaintiffs, v. ABIGAIL CHRISTINE MADDOX, ALEXANDRA C. MADDOX, and GEICO General Insurance Company, a foreign for profit corporation, Defendants. Circuit Court, 4th Judicial Circuit in and for Nassau County. Case No. 2015-CA-000297. Division: A. January 31, 2018. Steven M. Fahlgren, Judge. Counsel: Curry Gary Pajcic and Benjamin E. Richard, Pajcic & Pajcic, P.A., Jacksonville, for Plaintiffs. James P. Hanratty, Marshall Dennehey Warner Coleman & Goggin, Jacksonville, for Defendants Abigail & Alexandra Maddox; Joshua J. Hartley and Jordan M. Thompson, Young, Bill, Boles, Palmer & Duke, P.A., Tampa, for GEICO General Insurance Company.
AMENDED SUPPLEMENTAL JUDGMENTAWARDING ATTORNEYS’ FEES AND COSTS1
This matter came before the Court for an evidentiary hearing on January 16, 2018, upon this Court’s “Order on Post Verdict Motions; Finding Entitlement to Attorneys’ Fees and Taxable Costs; Granting Motions to Join GEICO to Forthcoming Judgments & Setting Evidentiary Hearing to Determine Reasonable Amounts.” (Doc. 271)
Present at the hearing were Curry Gary Pajcic and Benjamin E. Richard for the plaintiffs and James P. Hanratty for the Maddox defendants.2 Attorney Hanratty confirmed that his presence was as counsel for the Maddox defendants and that he did not and could not represent Geico at the hearing. The Court having received expert testimony from Robert Spohrer for plaintiffs and Jeptha F. Barbour for defendants, heard argument of counsel, reviewed the memorandums, timesheets and affidavits submitted in advance of the hearing by both sides (Docs. 293, 300, 301 & 305-06), considered the prior fee orders presented at the hearing from the 4th Judicial Circuit, and being otherwise fully advised regarding the case, finds as follows:
I. Introduction
As an initial matter, plaintiffs, Cindy Lancaster Stewart and John Ferrell Burkett (hereafter “plaintiffs”), are entitled to be “awarded reasonable costs, including investigative expenses, and attorney’s fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred from the date the offer was served,” January 19, 2016 through October 26, 2017 (the “relevant period”), the date that there was an order finding an entitlement to attorney’s fees. See Fla. Stat. § 768.79(6)(b); Florida Patients’ Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). As the prevailing parties, both plaintiffs are also entitled to their taxable costs pursuant to Fla. Stat. § 57.041.
II. Findings of Fact & Conclusions of Law Related to Attorney’s Fees and Taxable Costs
Based on carefully reviewing the evidence presented, the Court makes the following findings of fact and conclusions of law:
1. The Court finds that Mr. Spohrer and Mr. Barbour are both well qualified by experience and reputation to testify as expert witnesses in the area of attorney’s fees and both come before the Court with a high degree of credibility.
2. The Court finds that this case involved a contested liability intersection collision at night in Nassau County, Florida. The case was aggressively prosecuted and defended. Discovery and pre-trial preparation was commensurate with the severity of the damages at issue. Sixteen depositions were taken, many of which were experts. In excess of fifteen hearings were conducted outside of the trial context. The first attempt to try the case failed when the litigants were unable to seat a jury, and the case was set for trial three times and continued once at the motion of the Defendants, before the six day jury trial even commenced. At trial, the plaintiffs called 17 witnesses including six treating doctors.
3. At the conclusion of the trial, the jury returned a verdict in favor of both Plaintiffs. After reduction for all setoffs, an amended final judgment was entered by this Court in the amount of $2,720,469.18 for Cindy Stewart and $186,992.20 for Ferrell Burkett on October 26, 2017. The judgment triggered responsibility for attorney’s fees and costs based on the Defendants’ rejection of both Plaintiffs’ separate offers to settle pursuant to Fla. R. Civ. P. 1.442 and Fla. Stat. § 768.79.
Reasonable Attorneys’ Fees
4. There was conflicting testimony concerning the appropriate hourly rates for the lawyers and there is some dispute as to the amount of attorney hours reasonably expended on the case. Given the withdrawal of most of the challenged paralegal time, the only paralegal time in dispute is the 74 hours of time expended by paralegal Rose Kordenbrock under the direction of Mr. Curry Pajcic during the trial. The Court accepts Mr. Spohrer’s unchallenged testimony regarding the reasonableness and necessity of this time by Mr. Pajcic’s paralegal. Thus, the reasonable hours expended by the various attorneys and paralegals is as follows:
a. Curry Gary Pajcic, 784.8 hours
b. William A. Bald, 262.8 hours
c. Benjamin E. Richard, 64.1 hours
d. Stephen J. Pajcic, III, 18.8 hours
e. Rose M. Kordenbrock (paralegal) 164.5 hours
f. Nancy Andujar (paralegal) 38.1 hours
These rates are in keeping with rates awarded by other judges in the Fourth Judicial Circuit.
5. With respect to the following factors set out in Rule 4-1.5, Rules
Regulating The Florida Bar, the most credible evidence accepted by the Court is as follows:
a. The Time and Labor Required, the Novelty, Complexity and Difficulty of the Questions Involved and Skill Required to Properly Perform the Legal Services: this was a case that required the work of a top personal injury firm. As testified at the hearing, many attorneys may not have even taken this case at inception based on the facial right-of-way issues in the crash. At first blush, plaintiff appeared to have failed to yield right of way to an oncoming vehicle. The Court is convinced that the case had many novel issues relating to whether the lights were on or not, the inspection issues, the testing issues, the exclusion of Dr. Ipser on the issues of testimony about injuries allegedly related to the failure to wear a seatbelt, and potential spoliation. The Court also agrees with the expert testimony that “there were a number of complex medical, scientific, and evidentiary issues in the case, and that they were handled very skillfully and very successfully” by plaintiffs’ counsel. In sum, this was a complex, high stakes complex personal injury case, with difficult issues as to both liability and damages, which warranted the skilled representation provided by the Pajcic & Pajcic team of attorneys. It should be noted that the movants have utilized exceptional billing discretion by reducing paralegal time from 414.7 hours to 164.5 hours. Thus, although the Court would prefer a more detailed entry on the day of trial than “attend trial,” the Court is convinced the fees sought are eminently reasonable.
b. The Likelihood the Acceptance of Employment Will Preclude Other Employment: representing these plaintiffs necessitated plaintiffs’ counsel giving up other work on behalf of other clients. This is readily apparent based on the 1,130.5 attorney hours and 202.6 paralegal hours (reduced from 462.4 hours) billed by counsel.
c. The Fee or Rate of Fee Customarily Charged in the Locality for Legal Services of a Comparable or Similar Nature: the Court is aware that some defense firms charge in excess of $1,000 per hour for attorney time defending litigation brought against tobacco companies in the Fourth Judicial Circuit. Mr. Spohrer is both a highly skilled plaintiff’s attorney and a competitor of Pajcic and Pajcic, making his testimony on this factor particularly relevant. He testified that 99.9% of plaintiff’s personal injury cases are handled on a contingency fee, but on the rare instance he does agree to represent a client at an hourly guaranteed rate, he charges $750 per hour.
The Court finds that the following hourly rates are reasonable for attorneys of plaintiffs’ counsels’ skill, experience, and reputation for contingency work where attorneys have to front all the costs and expenses (here more than $120,000) but will only recover attorneys’ fees if they are successful at trial and obtain a recovery:
a. Curry Gary Pajcic $750
b. William A. Bald $700
c. Benjamin E. Richard $500
d. Stephen J. Pajcic, III, $750
e. Rose M. Kordenbrock (paralegal) $175
f. Nancy Andujar (paralegal) $175
g. Robert Spohrer $750 (Attorney fee expert)
Although these rates are somewhat higher than the rates testified to by Mr. Barbour3, these rates are appropriate for these attorneys and their representation in this particular case. There was unrebutted expert testimony that “Pajcic & Pajcic is at the top rank of the plaintiffs’ bar in the state of Florida and equal to the top rank of the plaintiffs’ bar nationally doing complex litigation.” That Steve Pajcic is “the dean of the plaintiffs’ bar in North Florida.” Even the defense expert, Mr. Barbour, testified that Pajcic & Pajcic “is certainly in the top tier of lawyers in the state.”
d. The Significance of or Amount Involved in the Subject Matter of the Representation and the Results Obtained: the Court heard the credible testimony of Mr. Spohrer that “there were a number of complex issues that were skillfully handled” and that this case involved “very significant injuries” and was tried before a jury “in a very conservative county.” Further, as the Court stated at the hearing, this case was well defended and “both sides were almost flawless in their presentations and in their arguments.” Finally the results in both cases were significant and the resulting final judgment is far in excess of the amounts offered to resolve the cases. The recovery for Mr. Burkett was nearly four times the amount offered by Geico at the outset. Similarly, Ms. Stewart received many multiples of what was offered to her.
e. The Time Limitations Imposed by the Client or Circumstances: There was testimony that plaintiffs’ counsel’s actions in immediately securing evidence of the headlights from the defendants’ vehicle was critical to preserving the integrity of the truth seeking process and ultimately obtaining a favorable result for the plaintiffs. The collision occurred on December 10, 2014, at which time Plaintiffs alleged Defendants’ lights were off causing the crash. Mr. Pajcic promptly retained expert Gary Stephens to inspect the vehicles to document any evidence of the same. On December 15, 2014, Mr. Stephens inspected the Maddox vehicle and photographed and documented the critical forensic evidence of the lightbulbs (photographs showing a testified-to lack of hot shock in the Maddox headlight filaments, and a lack of tungsten oxidation despite the vacuum seal of the headlight bulb having been broken — both providing forensic evidence, testified to by Mr. Stephens testified at trial which was unrebutted, that the Maddox headlights were not on at the time of the crash). On December 16, 2014, GEICO took possession of the Maddox vehicle, and destructive testing was done on the Maddox vehicle by GEICO’s retained expert, including putting power to the vehicle and removing the headlights without notice to plaintiffs. After this date, upon subsequent joint inspection of the Maddox headlights in November of 2015, the broken bulb was now covered with tungsten oxide, demonstrating that power had been put to the Maddox bulb after Mr. Stephens’s inspection. Without the timely and critical inspection by Mr. Stephens on December 15, 2014, made at the direction of Plaintiff’s counsel, the critical evidence of a clear bulb no tungsten oxide documented by Mr. Stephens on December 15, 2014, would have been lost — and the jury would have been left with the altered evidence of a bulb covered with tungsten oxide suggesting the lights had been on at the time of the crash.
f. The Nature and Length of the Professional Relationship, the Significant Amount of Time and Labor Required: The Pajcic & Pajcic team of attorneys have been representing Ms. Stewart and Mr. Burkett from almost immediately after the crash (December 10, 2014) through the present, and will continue to represent the clients during the pendency of the current appeal by the Maddox Defendants in the First DCA.
g. The Experience, Reputation, Diligence and Ability of the Lawyers Performing the Services: As set forth above, there was unopposed testimony that Pajcic & Pajcic is a top firm both nationally and in Florida and that Steve Pajcic is the “dean of the plaintiffs’ trial bar” in North Florida. All four of the plaintiff’s attorneys involved enjoy excellent reputations and performed consistent with their reputations in this case. In addition, as stated above, the top tier of attorneys in personal injury and products liability actions earn in excess of $1,000 per hour for defending tobacco cases without any contingency and without the need to front costs.
h. Whether the Fee is Fixed or Contingent: The fee was purely contingent and Pajcic & Pajcic fronted in excess of $120,000.
4. In addition to the foregoing factors, Section 768.79, Florida Statutes requires the Court to consider additional factors as to the reasonableness of the attorneys’ fees award, including:
a. The then-apparent merit or lack of merit in the claim: As set forth above, there was an uncertain outcome when the case was accepted and many plaintiffs firms may not have accepted the case. Liability was contested, one of the defendants was a very sympathetic young adult barely old enough to drive, and damages were hotly contested as to both plaintiffs albeit in different ways.
b. The number and nature of proposals made by the parties: There were multiple pre-suit settlement offers made by the plaintiffs to resolve the case within the policy limits and a failed mediation. However, the only proposals for settlement were made by the plaintiffs were on January 19, 2016, and the final judgment far exceeds these offers.
c. The closeness of questions of fact and law at issue: There were close issues of fact and law in this case as testified to at the hearing by both experts. As mentioned, there was testimony that “at first blush this case looked like a loser for the plaintiff.” There were complicated medical issues, and several disputed legal issues including the successful exclusion of expert testimony. The fact that there was no challenge by the defense to the reasonableness of the 1,130.5 hours of attorney time expended in this litigation speaks to this factor.
d. Whether the party making the proposal had unreasonably refused to furnish information necessary to evaluate the reasonableness of the proposal: There was no argument or evidence that this occurred.
e. Whether the suit was in the nature of a test case presenting questions of far reaching importance affecting nonparties: This was not a test case as far as plaintiffs were concerned. There was testimony presented, however, that this was a very, very significant case, especially to Ms. Stewart who was profoundly injured, and, as the jury determined was unable to return to gainful employment.
f. The amount of the additional delay cost and expense that the party making the proposal reasonably would be expected to incur if the litigation were to be prolonged: It would have been reasonable to anticipate significant delay if the proposal was not accepted. Indeed, litigation is still ongoing and the proposals were served more than two years ago.
5. Based on a review of the relevant factors as set out in Rule 4-1.5, Rules Regulating the Florida Bar, Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), Standard Guar. Ins Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990), Fla. R. Civ. P. 1.442(h)(2), together with consideration of the evidence and expert testimony offered to the Court, the Court finds that the reasonable hourly rates and reasonable number of hours for the relevant time period for the attorneys and paralegals is as follows:
| Timekeeper | Hours | Rate | Resulting Fee |
| Curry Gary Pajcic | 784.8 | $750.00 | $588,600.00 |
| William A. Bald | 262.8 | $700.00 | $183,960.00 |
| Benjamin E. Richard | 64.1 | $500.00 | $32,050.00 |
| Stephen J. Pajcic, III | 18.8 | $750.00 | $14,100.00 |
| Total Attorney Hours | 1130.5 | $881,710.00 | |
| Rose Kordenbrock | 164.5.7 | $175.00 | $28,787.50 |
| Nancy Andujar | 38.1 | $175.00 | $6,667.50 |
| Total Paralegal Hours | 202.6 | $35,455.00 |
6. Based upon the evidence provided and in accordance with the law cited above, the total of objectively reasonable number of hours for the attorneys and paralegals referenced above is 1,333.1 hours at a blended hourly rate of $640.00 per hour based on the reasonable number of hours and the reasonable hourly rates set out above. The total amount of reasonable attorneys’ fees incurred by the plaintiffs is $854,165.00.
7. The attorney and paralegal fees above have accumulated interest at the lawful rate since October 26, 2017, the date the Court entered its order on entitlement see (Doc. 271); Quality Engineered Installation, Inc. v. Higley S., Inc., 670 So. 2d 929, 931 (Fla. 1996) [21 Fla. L. Weekly S141a] (holding that “interest accrues from the date the entitlement to attorney fees is fixed through . . . court determination, even though the amount of the award has not yet been determined”), and will continue to accrue interest at the legal rate until paid in full.
8. Plaintiffs are also entitled to costs in the way of attorney’s fees charged by their expert witness, Robert Spohrer. Plaintiffs are entitled to an award of expert attorney’s fees for Mr. Spohrer’s preparation for and attendance at the subject hearing to provide testimony regarding the reasonable rates and amount of hours reasonably expended on the case. See, e.g., Travieso v. Travieso, 474 So. 2d 1184, 1185 (Fla.1985); Fla. Stat. § 92.231 (Expert witness fees may be taxed as costs for a lawyer who testifies as an expert regarding the value of a reasonable attorney’s fees.). Mr. Spohrer testified he expended an objectively reasonable amount of time, 10 hours over the course of four days, at an objectively reasonable rate of $750.00 per hour for a total of $7,500.00. Mr. Spohrer also testified that he donates all income derived from his testimony as an attorney fee expert to Jacksonville Area Legal Aid.Taxable Costs
9. The Florida Supreme Court has adopted the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions to assist courts in determining the type of costs that should (or should not) be awarded to a prevailing party. “However, by its express terms, the Guidelines are advisory only. The taxation of costs in any particular proceeding is within the broad discretion of the court.” Winter Park Imports, Inc. v. JM Family Enterprises, Inc., 77 So. 3d 227, 230 (Fla. 5th DCA 2011) [36 Fla. L. Weekly D1427a].
10. Plaintiff Cindy Stewart sought taxable costs of $70,905.59 (Doc. 250) and Plaintiff Ferrell Burkett sought taxable costs of $23,120.30 (Doc. 251). Thus, the Plaintiffs claimed $94,025.89 in total taxable costs. As directed by the Court, the Plaintiffs filed all invoices and supporting affidavits with the Court prior to the hearing. See (Doc. 293) The Maddox Defendants filed an objection to certain specific costs the morning of the hearing, objecting to $49,162.88 as outside the Guidelines. (Doc. 304) The Court addressed and ruled on all of the disputed costs at the hearing with the exception of the Gary Stephens’ expert charges which the Court asked the Plaintiff to file a more detailed explanation addressing the defense’s argument that the invoices were duplicates.
11. For the reasons stated more fully on the record, the Court sustained the objections to and/or plaintiffs withdrew at the hearing the following entries: video service charge $40.00; Dr. Bahri office conference $6,200; Wildes Investigation $232.73 and Georgia Winegeart depo of Woodward $167.25. Thus, the Court sustained the Defendants’ objections in the amount of $6,639.98. For the reasons stated on the record, the Court overruled the objections to the remaining costs.
12. The Court having reviewed Plaintiffs’ Notice of Filing Copies of Invoices From Stephens & Associates (With Explanation) (Docs. 305 & 306) agrees that the confusion at the hearing stemmed from the bills being split between the two Plaintiffs. Stewart’s payment of $6,276.78 plus Burkett’s payment of $2,876.79 equals the total amount paid/invoiced/claimed $9,153.57. Thus, while the Defendant is correct that invoices filed were duplicative, and were attached to both Plaintiff’s motions to tax costs, it is clear that the bills were only paid once, and that the Plaintiff’s motions only sought to tax the amount actually paid to this expert for his investigative work and testimony in this case: $9,153.57.
13. Thus, the Plaintiffs are entitled to taxable costs in the total amount of $87,385.91 (the $94,025.89 claimed minus the sustained objections of $6,639.98). It is therefore, ORDERED AND ADJUDGED:
Plaintiffs Cindy Lancaster Stewart 123 W. Hirth Road Condo Unit #1603, Fernandina Beach, FL 32034 and John Ferrell Burkett, 95243 Clements Road, Fernandina Beach, FL 32034 take now from Abigail Christine Maddox, Alexandra C. Maddox, and GEICO General Insurance Company, a foreign for profit corporation, jointly and severally, the sum of $854,165.00 for reasonable attorneys’ fees which shall bear interest at the legal rate from October 26, 2017, for which sum let executions issue.
Plaintiffs take now from Abigail Christine Maddox, Alexandra C. Maddox, and GEICO General Insurance Company, a foreign for profit corporation, jointly and severally, the sum of $87,385.91 for taxable costs which shall bear interest at the legal rate from October 26, 2017, for which sum let executions issue.
Plaintiffs take now from Abigail Christine Maddox, Alexandra C. Maddox, and GEICO General Insurance Company, a foreign for profit corporation, jointly and severally, the sum of $7,500.00. for Robert Spohrer’s expert fee, for which sum let executions issue.
__________________
1The Court has reviewed the Defendants’ Motion for Reconsideration and grants it in part and denies it in part as more fully set forth herein to address some of the Defendants’ objections. The remaining objections made by the Defendants are without merit.
2Although present when the hearing was scheduled and also served with the Court’s October 26, 2017, Order setting the hearing (Doc. 271, paragraph 8), counsel for GEICO did not attend the evidentiary hearing, presumably because GEICO’s interests were aligned with the Maddox Defendants who were well represented by Mr. Hanratty.
3There was no opposing testimony concerning the paralegal rates. Mr. Barbour opined as to reasonable hourly rates as follows: Steve Pajcic $600, Curry Pajcic $450, Ben Richard and Bill Bald $375. As a basis for his opinions, Mr. Barbour relied upon a sampling, or “survey”, of an unknown and undisclosed number of anonymous lawyers, from general litigation firms, from what the anonymous attorneys told Mr. Barbour they billed for general plaintiff’s litigation work some three years ago (whether it be probate, commercial, or real estate litigation). None of the testified-to sampled rates were for representing a plaintiff in a personal injury matter. None of the anonymous attorneys specialized in representing personal injury plaintiffs, and none of them exclusively represented personal injury plaintiffs in their practice. The Court finds that this is not a reliable basis for to determine appropriate attorney’s fees in this matter.
