26 Fla. L. Weekly Supp. 41b
Online Reference: FLWSUPP 2601SANTInsurance — Attorney’s fees — Amount — Contingency risk multiplier of 1.50 is awarded to medical provider
KELLI SANTEE, Plaintiff, v. WINDHAVEN INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 17-CC-010852. Division L. March 1, 2018. Michael S. Williams, Acting County Court Judge. Counsel: Timothy Patrick, Patrick Law Group, Tampa, for Plaintiff. Daniel Smith, for Defendant.
[Related order at 25 Fla. L. Weekly Supp. 562a.]
FINAL JUDGMENT AWARDING ATTORNEYS’ FEESAND COSTS TO PLAINTIFF, KELLI SANTEE, AGAINSTDEFENDANT, WINDHAVEN INSURANCE COMPANY
THIS CAUSE having come before the Court on November 9, 2017, on an evidentiary hearing in the above-styled cause of action, to determine the reasonable hourly rates, time, fees and multiplier, if any, to be awarded to Plaintiff, with respect to the claims of Plaintiff for an award of reasonable attorneys’ fees and costs. This cause arose from a declaratory action seeking a coverage declaration subsequent to Defendant’s rescission of Plaintiff’s policy of insurance based upon a material misrepresentation defense for an alleged failure to disclose a household member on the application for insurance.
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 herebyORDERED AND ADJUDGED as follows:
A. Factors considered in awarding hourly rates and multiplier
1. In determining the hourly rates, time, fees to be awarded, and whether a multiplier for an enhanced fee is appropriate, this Court has considered the various factors set forth in Florida Rule of Professional Conduct 4-1.5(b)(1)(A)(H), as well as the applicable case law governing the award of reasonable attorney’s fees and costs and contingency fee multipliers, including 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).
2. Rule 4-1.5(b)(1)(A)-(H) sets forth a list of factors as guidelines for determining a reasonable attorneys’ fee. According to Rule 4-1.5(b(1), “[f]actors to be considered as guides in determining a reasonable fee include” the following:
(A) the time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(B) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer;
(C) the fee, or rate of fee, customarily charged in the locality for legal services of a comparable or similar nature;
(D) the significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained;
(E) the time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional or special time demands or requests of the attorney by the client;
(F) the nature and length of the professional relationship with the client;
(G) the experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency of effort reflected in the actual providing of such services; and
(H) whether the fee is fixed or contingent, and, if fixed as to amount or rate, then whether the client’s ability to pay rested to any significant degree on the outcome of the representation.
In addition to the foregoing guidelines, case law must also be considered.
3. 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 addressed the ability to recover 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).
4. In Quanstrom, the Florida Supreme Court identified three categories of cases, for purposes of deciding when it is and is not appropriate to apply 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, 555 So.2d at 833-835. Under ordinary circumstances, only the first two categories are eligible to receive a multiplier. Id.
5. Under the first and second category of cases described by Quanstrom (i.e., public policy enforcement cases and tort and contract cases), the following 12 factors must be considered:
(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. While worded and arranged slightly different, the foregoing 12 factors of Quanstrom (and also set forth in Rowe) are, for all intents and purposes, the same factors listed in Rule 4-1.5(b)(1)(A)-(H).
6. Under the second category of cases described by Quanstrom (i.e., tort and contract cases), the trial court must also consider three additional factors:
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, 555 So.2d at 834. Accord, Bell v. U.S.B. Acquisition Co., 734 So.2d 403, 412 (Fla.1999) [24 Fla. L. Weekly S220a].
B. Reasonable Hourly Rates Awarded in this Case
8. After considering the evidence presented and the applicable factors as stated above, the Court finds that the greater weight of the evidence demonstrates that the reasonable hourly rates for Plaintiff’s counsel in this case is as follows:
a. For Timothy Patrick, Esquire, an hourly rate of $400.00.
C. Reasonable Time Expended in this Case
9. Plaintiff’s counsel Timothy Patrick, Esquire testified that a total of 43.9 hours had been expended in this matter. Attorney Arthur Liebling testified as an expert that it was his opinion that all the items listed in the Time Sheet were necessary to undertake the handling of this lawsuit. Attorney Michael Clarke testified as an expert witness for the Defendant that it was his opinion that 29 hours represented a reasonable amount of hours that were necessary to undertake the handling of this lawsuit.
10. After considering the evidence presented, the Court finds that the greater weight of the evidence demonstrates that the reasonable time expended for Plaintiff’s counsel in this case is as follows:
a. For Timothy Patrick, Esquire, 35.6 hours
D. Loadstar Amount Based on Reasonable Hourly Rates and Hours Expended
11. Based upon the foregoing findings by this Court, the Court finds that the total loadstar amount for the reasonable number of hours expended in defense of this cause of action is $14,240.00.
E. Applicability of Contingency Fee Multiplier
12. After considering the controlling case law and evidence presented at the hearing, this Court finds that the Plaintiff is entitled to a contingency fee multiplier under the facts and evidence presented in this case. It is the opinion of this Court that this case falls within the tort and contract category of cases as described by Standard Guarantee Insurance Co. v. Quanstrom, 555 So.2nd 828 (Fla. 1990). This Court considered the various factors set forth in Quanstrom and and awards the Defendant a multiplier of 1.50. The total enhanced fee to be awarded to the Defendant is the sum of $21,360.00.
F. Taxable Costs
13. The Court hereby determines that the following amounts of costs (not including the fees of Plaintiff’s expert witness) incurred by Plaintiff’s counsel were reasonable, necessary, and served a useful purpose:
Filing Fee $310.00
DFS Fee $ 15.00
14. The testimony of Plaintiff’s expert, Arthur Liebling, Esquire, indicated that his hourly rate was $575-600.00, but that he had agreed to $525.00 with Plaintiff, and that he had expended 10.0 hours in acting as an expert for the Plaintiff plus his courtroom testimony. This court finds 11.0 hours reasonable for Mr. Liebling’s time. Accordingly, the Court finds that the Plaintiff is entitled to recover the cost of her fee expert as a taxable cost. Based on the evidence, the Court finds that $5,775.00 is a reasonable cost to be awarded to Plaintiff for her expert.
IT IS HEREBY FURTHER ORDERED AND ADJUDGED that
Plaintiff shall recover attorneys’ fees from Defendant in the amount of $21,360.00, which includes the foregoing loadstar amount, as enhanced by the contingency risk multiplier determined by this Court, taxable costs in the amount of $325.00, and costs of Plaintiff’s expert in the amount of $5,775.00, for a total amount of $27,460.00, which shall bear interest at the legal rate established pursuant to Section 55.03, Fla. Stat., for which let execution issue.
