26 Fla. L. Weekly Supp. 755a

Online Reference: FLWSUPP 2609HOLLInsurance — Personal injury protection — Attorney’s fees — Amount — Contingency risk multiplier — Multiplier is not warranted where there is no showing that medical provider had difficulty finding attorney or that market required multiplier to obtain competent counsel, attorneys did not give up any work to handle matter, and record reflects long periods in which attorneys performed no work on case — Amount of hours claimed is unreasonable for small claims PIP case

PONTE VEDRA CHIROPRACTIC AND PHYSICAL THERAPY, as assignee of Helen Hollis, Plaintiff, v. USAA CASUALTY INSURANCE COMPANY, Defendants. County Court, 7th Judicial Circuit in and for St. Johns County. Case No. SP10-450. Division 55. October 12, 2018. J. Michael Traynor, Judge. Counsel: Amy Hanna, Ashley Britt-Hansen, and Ellis Peetluk, for Plaintiff. Scharome Wolfe and Dawn Carsten, Roig Lawyers, for Defendant.

[Notice of Appeal filed November 11, 2018.]

ORDER ON PLAINTIFF’S MOTION FOR ATTORNEYS FEES

THIS CAUSE came to be heard before the Court on February 2, 2018 as a continuation of the November 17, 2017 hearing on Plaintiff’s Motion for Attorneys’ Fees and Costs. Present at the hearing were Plaintiff’s counsel, Amy Hanna, Esq, Ashely Britt-Hansen, Esq. and Ellis Peetluk, Esq.. David Scott Craig, Esq. appeared at the November 17, 2017 hearing only. Also present at the hearing were Defense counsel Scharome Wolfe, Esq., and Dawn Carsten, Esq., as well as Joseph Camerlengo, Esq., the Plaintiff’s fee expert, and Julie Lewis Hauf, Esq., the Defendant’s fee expert. The Court has considered the testimony of Mr. Camerlengo, Mr. Craig, Mr. Peetluk, and Ms. Hauf, the billing records of Plaintiff’s counsel as well as the affidavits and depositions filed by Plaintiff. Being otherwise fully advised in the premises, the Court finds as follows:

I. Entitlement to Attorney’s Fees and Costs

Trial judges and lawyers used to accept as presupposed by experience the idea that, no matter how much time was spent or how good the advocate, the fair price of some legal victories simply could not exceed — or, conversely, should not be less than — some relevant sum not determined alone by hours or rates. Ziontz v. Ocean Trail Unit Owners Ass’n, Inc., 663 So. 2d 1334, 1336 (Fla. 4th DCA 1993). For example, no business could long expect to spend $60,000 to collect $100 accounts. Id. The Fourth District Court of Appeal illustrated this point in declaring a $60,000 fee award to foreclose a $100 assessment to be “obviously against the manifest justice of the cause,” and observing that judges “have a special responsibility over attorney’s fees and need not abandon as judges what we knew as lawyers or — for that matter — our common sense.” Id. at 1335.

Fla. Stat. § 627.428, in operation and intent, is designed only to allow the award of a reasonable fee. Although there is no express requirement of proportionality between the amount of a judgment and the attorneys’ fees and costs incurred in obtaining that judgment, this Court reminds the parties that lawyers are officers of the court and the court is an instrument of society for the administration of justice. See Baruch v. Giblin, 164 So. 831, 833 (Fla. 1935). Justice should be administered economically, efficiently, and expeditiously. Id. The attorney’s fee is a very important factor in the administration of justice, and if it is not determined with proper relation to that fact it results in a type of social malpractice that undermines the confidence of the public in the bench and bar, bringing the court into disrepute and destroying its power to perform adequately the function of its creation. Id.

The above observations aside, entitlement to attorneys’ fees and costs has been admitted between the parties. Defendant filed its Confession of Judgment on August 15, 2016 in which it stipulated to Plaintiff’s entitlement to reasonable attorney’s fees and costs. In its April 7, 2017 Order, the Court determined that Plaintiff is entitled to reasonable attorneys’ fees and costs through March 3, 2017. Section 627.428, Florida Statutes provides:

Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

Fla. Stat. § 627.428(1).

Accordingly, a Plaintiff’s attorney who files suit and prevails has the right to reasonable attorney’s fees. For suits such as this one filed prior to 2013, the right to reasonable attorney’s fees includes the consideration of a multiplier.

a. Multiplier

In Joyce v. Federated Nat’l Ins. Co., the Florida Supreme Court reaffirmed the approach courts should follow when considering the application of a contingency fee multiplier in insurance coverage disputes:

With respect to the availability of a contingency fee multiplier, Quanstrom “reaffirm[ed] the principles set forth in Rowe” for calculating the lodestar amount and the Court then set forth the following three factors for trial courts to consider in determining the necessity of a contingency fee multiplier: “(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 in Rowe are applicable, especially, the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client.”

228 So. 3d 1122, 1128 (Fla. 2017) [42 Fla. L. Weekly S852a].

The Court finds that Plaintiff has not demonstrated a multiplier is necessary to the determination of a reasonable fee. The Court observes there has been no showing that the client had difficulty in finding an attorney or that the market required a contingency fee multiplier to obtain competent counsel. Mr. Camerlengo conceded that he had no knowledge as to whether the client sought out other attorneys prior to obtaining present counsel. The Court further finds that the North Florida market does not require a contingency fee multiplier to retain competent counsel in cases such as this. The Court also notes that PIP suits continue to be filed despite the fact that the contingency risk multiplier is no longer available. The Court observes that Mr. Camerlengo was not aware of any work that the attorneys involved in this case gave up to handle this matter. The Court also observes that the records reflect long periods of time in which the attorneys were not working on this case at all. Although the Court finds that the likelihood of success at the outset of the case was even, this fact alone when viewed in totality with the other factors does not warrant a multiplier. Accordingly, after weighing the necessary factors, the Court finds that a contingency fee multiplier is not warranted.

II. Reasonableness of Attorney’s Fees and Costs

The Court has reviewed and considered the necessary factors in determining reasonable fees and costs as set forth in Rule 4-1.5, Rules of Professional Conduct, and as otherwise discussed in Florida Patients Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985) and Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990). Those factors include:

a. the time and labor required

b. the skill requisite to perform the legal services properly

c. the preclusion of other employment by the attorney due to the acceptance of the case

d. the fee customarily charged

e. whether the fee is fixed or contingent

f. time limitations imposed by the client or the circumstances

g. the amount involved and the results obtained

h. the experience, reputation and ability of the attorneys

i. the “undesirability” of the case

j. the nature and length of the professional relationship with the client

Plaintiff’s billing records indicate that Mr. Craig and Mr. Peetluk expended 239.6 hours and 69.1 hours respectively in procuring the confession of judgment. This does not include the additional hours of Mr. Salisbury, Ms. Britt-Hansen and Ms. Hanna that have been stipulated to by Defendant. Plaintiff’s counsel sought an hourly rate of $525-550 for Mr. Peetluk and $450 for Mr. Craig. Defense counsel sought an hourly rate of $400 for Mr. Peetluk and $350 for Mr. Craig. The parties agreed to the following stipulations:

a. Taxable Costs prior to stipulation as to entitlement on March 3, 2017 in the amount of $185.00;

b. The hours worked and hourly rate of David Salisbury are $225 per hour at 16.65 hours totaling $3,746.25;

c. The hours worked and hourly rate of Ashley-Britt Hansen are $225 per hour at 22.7 hours totaling $5,107.50.

d. The hours worked and hourly rate of Amy Hanna are $225 per hour at 1.4 hours totaling $315.00;

e. The total of items a-d above are $9,353.75 in stipulations.

f. The parties further stipulated to the hours of Mr. Camerlengo at 29 hours, but deferred to the Court to set his hourly rate. The Court finds Mr. Camerlengo’s hourly rate to be $350. This multiplied by the agreed 29 hours totals $10,150.

Based on a review of the relevant factors, together with consideration of the testimony offered and evidence presented, the Court finds that the hourly rates of and hours expended by Mr. Salisbury, Ms. Hansen and Ms. Hanna respectively, are reasonable. Based on those same considerations, the Court finds the reasonable hourly rate of Mr. Craig to be $350 and Mr. Peetluk to be $400. After reviewing the time logs of Mr. Craig and Mr. Peetluk provided in support of Plaintiff’s Motion for Attorneys Fees, the Court finds that some of the listed charges are vague, excessive, clerical and involve duplicative and/or redundant work. After reviewing Plaintiff’s time logs and considering the aforementioned factors, particularly the “amount involved and the results obtained,” as well as the complexity of the instant proceedings, the Court finds the 308.7 hours the Plaintiff’s attorneys assert were expended by Mr. Craig and Mr. Peetluk to be unreasonable. The Court finds that a reasonable amount of time expended in this type¹ of small claims, PIP case, is as follows:

· For D. Scott Craig, 154.4 hours at $350.00/hr. = $54,040

· For Ellis Peetluk, 38.6 hours at $400.00/hr.= $15,440

Accordingly, the total amount of fees awardable to Plaintiff, including the attorneys’ fees stipulated to by the parties, is $78, 648.75.

The Court finds costs in the amount of $185.00 as stipulated by the parties are reasonable. The Court find that the $10,150 dollars expended for Mr. Camerlengo will be added to Plaintiff’s costs, for a total of $10,335 in costs. Accordingly, it is:

ORDERED AND ADJUDGED that:

1. Defendant, USAA Casualty Insurance Company, shall pay to Plaintiff, Ponte Vedra Chiropractic and Physical Therapy, attorneys’ fees in the sum of $78, 648.75 and costs in the sum of $10,335, for a total sum of $88,983.75, that shall bear interest at the statutory rate of interest, for which sum let executive issue.

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¹The fact that Defendant raised procedural defenses, conditions precedent, and challenged the assignment of benefits is not unusual in this type of case. However, the Court has considered Plaintiff’s argument that this was not a traditional fee schedule case.