28 Fla. L. Weekly Supp. 411b
Online Reference: FLWSUPP 2805HERSInsurance — Travel — Attorney’s fees — Amount — Requested award of $402,495 in attorney’s fees for fraud in inducement claim and breach of contract claim on travel insurance policy that cost plaintiff $146.94 and provided maximum coverage of $2,260.86 is clearly unreasonable where case was neither novel nor complex and did not carry any far-reaching jurisprudential significance — Claimed hours that are unnecessary, excessive and duplicative are not compensable — Costs, expert witness fee, and prejudgment interest are awarded
REUVEN T. HERSSEIN, Plaintiff, v. AGA SERVICE COMPANY d/b/a ALLIANZ GLOBAL ASSISTANCE, a Foreign Profit Corporation, JEFFERSON INSURANCE COMPANY, a Foreign Profit Corporation, and AMERICAN AIRLINES, INC., a Foreign Profit Corporation, Defendants. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2017-018892-CC-05, Section CC06. March 11, 2020. Luis Perez-Medina, Judge.
ORDER ON PLAINTIFF’S MOTIONTO TAX ATTORNEY’S FEES AND COSTS
THIS CAUSE, came before the Court on November 19, 2019 on Plaintiff’s Motion to Tax Attorney’s Fees and Costs against Defendants, AGA Service Company d/b/a Allianz Global Assistance (“Allianz”) and Jefferson Insurance Company (“Jefferson”) (collectively, “Defendants”). The Court having carefully considered the motion and the full court record; having heard testimony from Plaintiff’s counsel and the expert witnesses for all parties1; having reviewed Plaintiff’s time records; having reviewed the defense expert’s objections and proposed reductions to Plaintiff’s claimed hours; having heard argument of counsel; having utilized the criteria set forth in section 627.428(1), Florida Statute; Rule 4-1.5 of the Rules Regulating the Florida Bar; and articulated by the Florida Supreme Court in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985); and being otherwise fully advised in the premises,
ORDERS and ADJUDGES as follows:
FINDING OF FACTS
As Hurricane Irma2 was tracking towards the Southern United States, Plaintiff, Reuven Herssein (“Mr. Herssein”), a South Florida attorney, sought to take his family out of harm’s way. Mr. Herssein purchased six round-trip airline tickets with American Airlines (“American”) for himself and his immediate family for travel to Las Vegas. The tickets were purchased online on September 5, 2017. The Herssein family was scheduled to depart from Miami International Airport two days later, on Thursday, September 7, and return on Tuesday, September 12. When Mr. Herssein purchased the airline tickets, he also bought travel insurance. The policy was offered by American with the purchase of any online trip/airline ticket purchase. It was advertised and sold by Allianz and underwritten by Jefferson.
On September 4, 2017, the day before Mr. Herssein purchased his tickets, then Florida Governor Rick Scott signed Executive Order 17-235, declaring a state of emergency in every county in the State of Florida. According to the Order, the forecast from the National Hurricane Center had Hurricane Irma making “landfall somewhere in South Florida or Southwestern Florida as a major hurricane” and traveling “up the entire spine of Florida.” Id. The five-day forecast predicted that on Saturday, September 9, 2017, Hurricane Irma would be “located somewhere north of Cuba and south of Andros Island in the Bahamas.” Id.
A Hurricane Watch was issued by the National Hurricane Center for the South Florida area on Thursday, September 7, 2017 at 11 AM. Hurricane Irma Local Report/Summary, National Weather Service, September 10, 2017. At 11 PM, the Watch was upgraded to a Hurricane Warning. Id. From Friday, September 8 through Saturday, September 9, Irma moved along the northern coast of Cuba and weakened to a Category 3 before accelerating towards the Florida Keys. Id.
On September 7, four hours before the scheduled flight was to depart, American cancelled the flight. When Mr. Herssein contacted American, he was told that no alternative flights were available because American cancelled all flights departing from Florida. Unable to book another flight out of South Florida, the Herssein family drove out of Florida to escape the Hurricane.
On the morning of Sunday, September 10, the center of Hurricane Irma made landfall at Cudjoe Key as a 130 mph Category 4 hurricane. Hurricane Irma Local Report/Summary, National Weather Service, September 10, 2017. In the afternoon, Irma made a second landfall at Marco Island as a Category 3 with 115 mph winds. Id. The center of Irma moved into central Florida overnight and up the Florida peninsula on Monday. Id.
Pursuant to Plaintiff’s allegations in the Complaint, the travel insurance policy, purchased along with the airline tickets, was intended to insure the Herssein family for trip cancellation “when the airline cancels the trip before the trip begins.” Complaint, 3. Specifically, the policy provided “trip interruption coverage” when the airline “stops offering all services . . . because of a natural disaster, or severe weather.” Id. at 23. However, the General Exclusions section of the policy contained a clause denying coverage for “any loss that results directly or indirectly from . . . any problem or event that could have reasonably been foreseen” when the plan was purchased, or “natural disasters like hurricanes, earthquakes, fires and floods.” Id. at 28. The policy cost the Herssein family $146.94 in total and provided a maximum coverage for “Trip Cancellation Protection” of $2,260.86.3 Id. at 17.
On September 17, 2017, Plaintiff filed an insurance claim with Defendants. The Claim was denied on October 14, 2017, citing the language in the General Exclusion section of the policy which would deny coverage for “any problem or event that could have been reasonably foreseen.” Id. at 5, 45.
On November 2, 2017, Mr. Herssein, acting as his own attorney, filed a six-count Complaint against Defendants. The allegations against Jefferson were for breach of contract, violating Florida’s Deceptive and Unfair Trade Practices Act (“FDUPTA”), and fraud in the inducement. The allegations against Allianz were for breach of contract, violating FDUPTA, declaratory relief under FDUPTA, fraud in the inducement, and violating section 817.41, Florida Statutes, dealing with misleading advertising. The Complaint sought consequential damages, totaling $11,554.48, for hotel accommodations, fuel, food, and mileage, to “drive the Herssein Family out of Florida,” as well as the return of the $146.94 premium for the travel insurance policy. Apart from these consequential damages, Plaintiff also sought attorney’s fees and costs. Notably, nowhere in any of the Complaint’s allegations did Plaintiff seek a refund for the tickets.
On January 10, 2018, two months after the initial Complaint was filed, Mr. Herssein amended the Complaint against both Defendants removing all counts alleging violations of FDUPTA and section 817.41, Florida Statutes dealing with misleading advertising.4 The Amended Complaint also added American as a new Defendant, alleging one count of breach of contract and one count for breach of an implied covenant of good faith and fair dealing.
On February 28, 2018, American filed a Motion to Dismiss the Amended Complaint. The motion indicated that “American’s contractual Condition of Carriage expressly disclaim[ed] Plaintiff’s claim for special, incidental, and consequential damages, and, in any event, Plaintiff’s flight was cancelled because of a force majeure. (i.e. Hurricane Irma).” American Airlines, Inc.’s Motion to Dismiss Amended Complaint, p.1. The Motion further alleged that Plaintiff’s claims were “expressly preempted by the Airline Deregulation Act, 49 U.S.C. section 41713.” Id. On June 18, 2018, Plaintiff filed a Response in Opposition to American Airlines, Inc.’s Motion to Dismiss Amended Complaint. Before the Motion to Dismiss could be heard, Plaintiff settled with American for an undisclosed amount.
Even though the case against American was settled early in the litigation, Plaintiff billed Allianz and Jefferson for matters involving American. For example, Plaintiff spent 21 hours amending the Complaint to add American as a Defendant. Plaintiff spent 34.9 hours responding to American’s Motion to Dismiss. After the case against American settled, Plaintiff’s spent an additional 43.2 hours seeking documents and looking to depose American’s corporate representatives. All told, Plaintiff billed Defendants 99.1 hours for work which should have been billed to American, 55.9 hours for pre-settlement work and 43.2 hours for work done after the case against American was settled.
Throughout the litigation against Defendants, Plaintiff filed numerous motions for sanctions that were never set for a hearing. At one point in the litigation, Plaintiff filed seven Motions for Summary Judgment. Each motion addressed an affirmative defense raised by Defendants. On the same day that the Motions for Summary Judgments were filed, Plaintiff filed nine motions seeking 57.105 sanctions. The motions for sanctions focused on those same affirmative defenses. Plaintiff billed 37 hours for the seven Motions for Summary Judgments and 23.2 hours for the nine motions seeking 57.105 sanctions. While the motions for sanctions were never set for a hearing, Plaintiff did schedule a hearing on the seven Motions for Summary Judgement. Plaintiff then billed 49 hours preparing for that one hearing. Ultimately, only one Motion for Summary Judgment was heard and ruled on by the Court. The ruling was in Plaintiffs favor. The others six Motions for Summary Judgment where never heard by the Court.
Eighteen months after the case was filed, before a single deposition could be taken or trial commenced, Allianz and Jefferson settled with Plaintiff for an undisclosed amount plus an entitlement to attorney’s fees and costs. The settlement was for the breach of contract and the fraud in the inducement claims. An Order dismissing the suit was entered on May 3, 2019. A fee hearing was held on November 19, 2019 with Plaintiff submitting his final argument on December 3, 2019. Defendants did not submit any final argument after the hearing.
Plaintiff is seeking attorney’s fees under section 627.428(1), Florida Statutes, applicable after a judgment favoring a named insured is rendered against an insurer under an insurance policy or contract. Pursuant to a Court Order dated May 3, 2019, Plaintiff submitted two timesheets evidencing the services provided for the fees sought by each attorney within the Herssein Law Group. The first timesheet was for services prior to May 3, 2019. A supplemental timesheet was submitted for services from May 3, 2019 through July 16, 2019. In the first timesheet, Mr. Herssein billed for 288.3 hours at $650.00 per hour while Erik Fritz (“Mr. Fritz”), Mr. Herssein’s associate, billed 412.4 hours at $400.00 per hour. In the supplemental timesheet, Mr. Herssein billed an additional 50 hours while Mr. Fritz billed an additional 44.1 hours. Combined, Mr. Herssein billed 338.3 hours at $650.00 per hour while Mr. Fritz billed 456.5 hours at $400.00 per hour. In total, the Herssein Law Group is seeking 794.8 hours, totaling $402,495.00.
Pursuant to the same May 3, 2019 Court Order, Defendants challenged Plaintiff’s timesheet submissions. Defendants argued that the number of hours Mr. Herssein and Mr. Fritz spent on this case as well as the hourly rates they charged were unreasonable. Defendants argued that $34,805.00 was a reasonable fee for a simple breach of contract and fraud in the inducement case. Broken down, Mr. Herssein could bill 35.9 hours on the first timesheet and an additional 15 hours on the supplemental timesheet, both at a rate of $450.00 per hour, while Mr. Fritz could bill 31.3 hours on the first timesheet and 2.7 hours on the supplemental timesheet, at a rate of $350.00 per hour. During the fee hearing, Defendants’ expert conceded that Mr. Herssein should be awarded $500.00 rather than $450.00 per hour. Based on the new hourly rate, the Herssein Law Group would be entitled to $37,350.00.
Pursuant to this Court’s Order dated May 3, 2019, Plaintiff was required to file a response “in writing to each objection” raised by Defendants. Failure “to timely respond to the objections [would] result in the objection being sustained by the Court.” While Plaintiff responded to Defendants’ objections on the first timesheet, he never responded to Defendants’ objections on the supplemental timesheet. As such, Plaintiff waived any objections to Defendants’ adjustments of the supplemental timesheets.
ANALYSIS
Section 627.428(1), Florida Statute governs the shifting of attorneys’ fees in cases where an insured prevails against an insurance company. In pertinent part, the statute 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. (Emphasis added).
To determine what is “a reasonable sum as fees or compensation”, this Court must first determine the number of hours reasonably expended by Plaintiff in “prosecuting the suit” and then multiply that figure by a reasonable hourly rate. See Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145, 1150-51 (Fla. 1985). The resulting amount is “the lodestar, which is an objective basis for the award of attorney fees.” Id. at 1151. That said, Rule 4-1.5(c) of the Rules Regulating the Florida Bar, states:
In determining a reasonable fee, the time devoted to the representation and customary rate of fee need not be the sole or controlling factors. All factors set forth in the rule should be considered, and may be applied, in justification of a fee higher or lower than that which would result from the application of only the time and rate factors.
The following factors are set forth in Rule 4-1.5(b) and were considered by this Court in evaluating Plaintiff’s request for reasonable attorney’s fees.
(A) The time and labor required, the novelty, complexity, difficulty of the question 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 services 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 the amount or rate, then whether the client’s ability to pay rested to any significant degree on the outcome of the representation.
Rule 4-1.5(b) of the Rules Regulating the Florida Bar.
When deciding what constitutes a reasonable sum as compensation, Judges are not required to abandon their common sense or what they learned as lawyers. Ziontz v. Ocean Trail Unit Owners Ass’n, Inc., 663 So. 2d 1334, 1335 (Fla. 4th DCA 1993). Irrespective of the expert opinions presented at a fee hearing, Courts will “closely scrutinize attorney fee awards to ensure their reasonableness” and will not abandon their own experience or common sense. Seminole Cty. v. Clayton, 665 So. 2d 363, 364 (Fla. 5th DCA 1995) [21 Fla. L. Weekly D62a]. Even when there is evidence supporting the award of attorney’s fees, “[n]o court is obliged to approve a judgment which is so obviously contrary to the manifest justice of the case” and would “obviously offends even the most hardened appellate conscience.” Nunez v. Allen, 2019 WL 5089715 (Fla. 5th DCA Oct. 11, 2019) [44 Fla. L. Weekly D2511a] (citing Fla. Nat’l Bank of Gainesville v. Sherouse, 86 So. 279, 279 (1920)).
In Nunez, the appellate court held that an award of $343,590.00 in attorney’s fee to an attorney who represented himself in a civil dispute resulting in a judgment of $29,785.00 for the diminution in the value of his six-year-old truck, the cost to repair the truck, and the loss of use of the truck while it was being repaired, “was clearly unreasonable.” Id. The Court held that even when the testimony at a fee hearing supports both the hourly rate and the number of hours claimed, a Court must look to the complexity, novelty, or the “far-reaching jurisprudential significance” of the case in determining whether a final fee award is reasonable. Id.; see also In re Estate of Platt, 586 So. 2d 328, 333-34 (Fla. 1991) (in determining the number of hours that have been reasonably expended, a court must consider the time that would ordinarily have been spent by lawyers in the community to resolve this particular type of dispute, which is not necessarily the number of hours actually expended by counsel in the case at issue); Fla. Birth-Related Neurological Injury Comp. Ass’n v. Carreras, 633 So. 2d 1103, 1110-11 (Fla. 3d DCA 1994) (under the “hour setting” portion of a fee award it is important to distinguish between the “hours actually worked” and the “hours reasonably expended,” because the hours actually worked is not the issue); Mercy Hospital, Inc. v. Johnson, 431 So. 2d 687, 688-89 (Fla. 3d DCA 1983) (“In deciding upon amounts to be awarded as attorney’s fees, a trial court must consider not only reasonableness of the fees charged but the appropriateness of the number of hours counsel engaged in performing his services as well.”); Ziontz, 663 So. 2d at 1335 (Fla. 4th DCA 1993) (finding $60,000.00 in fees awarded in connection with litigation regarding an outstanding $100.00 assessment was manifestly unjust, refusing to abandon as Judges what was learned as lawyers or common sense). In Mercy Hospital, 431 So. 2d at 689, the Court concluded that an attorney’s claim of 5563 hours negotiating three loans was “inherently incredible.”.
Applying the reasoning of Ziontz, Nunez, and Mercy Hospital, this Court finds that an award of $402,495.00 in attorney’s fee for a fraud in the inducement claim and a breach of an insurance contract claim, on a policy which cost Plaintiff $146.94 and provided a maximum coverage of $2,260.86 is clearly unreasonable. This Court finds that this case was neither novel nor complex, nor did this case carry any far-reaching jurisprudential significance. The travel insurance policy, which is the subject of this case, was purchased by Plaintiff as Hurricane Irma was nearing the State of Florida and after a state of emergency had been declared. When his flight was cancelled, Plaintiff filed a claim for coverage. The claim was denied based on an exclusion for losses which Defendants claimed were reasonably foreseeable when the policy was purchased. Plaintiff filed suit for breach of contract and fraud in the inducement which was eventually settled without a trial or depositions. During the fee hearing, Mr. Herssein testified that the bulk of his prior experience was spent defending insurance companies on PIP cases. He is therefore familiar with the complexity of litigating the breach of an insurance contract claim. In this case, Mr. Herssein billed for 794.8 hours which equates to 19.2 weeks or 4.6 months, all spent litigating a case that never went to trial, that was never appealed, and where no depositions were taken.5 Accordingly, this Court finds that billing 794.8 hours on this type of case is clearly unreasonable. The Court would make the same findings even if the undisclosed settlement was for a larger amount than the damages claimed in the Complaint.
While this Court finds that the 794.8 hours spent by Plaintiff litigating this case is unreasonable, the Court is still tasked with determining what constitutes a reasonable number of hours and a reasonable hourly rate for Plaintiff’s counsel.
A. The Number of Hours Expended by Plaintiff’s Counsel
The first step in considering the number of hours expended is whether there is adequate documentation to support the number of hours claimed by Plaintiff’s counsel. Rowe, 472 So. 2d at 1150. “Florida Courts have emphasized the importance of keeping accurate and current records of work done and time spent on a case, particularly when someone other than the client may pay the fee.” Id. When determining a reasonable hourly rate, the Court must look to the documentation presented supporting the number of hours claimed. Id. Counsel is expected to claim only those hours that could be properly billed to his client. Id. “Inadequate documentation may result in a reduction in the number of hours claimed, as will a claim for hours that the Court finds to be excessive or unnecessary.” Id. The “novelty and difficulty of the question involved” is to be reflected in “the number of hours reasonably expended on the litigation.” Id.
While providing adequate and current records supporting the number of hours claimed is the first step in the inquiry, judges should reduce the hours claimed when they are: (a) excessive or too thorough; (b) duplicative of time spent by other lawyers for the same party; or (c) were simple ministerial tasks that were more appropriately handled by support staff. See Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (“Counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary”); North Dade Church of God, Inc. v. JM Statewide, Inc., 851 So. 2d 194, 196 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D1434b] (“Duplicative time charged by multiple attorneys working on the case are generally not compensable . . . [nor is] excessive time spent on simple ministerial tasks such as reviewing documents or filing notices of appearance.”).
The Court may also reduce fees on claims for which the moving party was unsuccessful. Baratta v. Valley Oak Homeowners’ Ass’n, Inc., 928 So. 2d 495, 499 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D1348c]. A trial Court “may take into account [. . .] that the [party] has not prevailed on all issues and the degree to which this has extended the litigation or increased costs.” Danis Indus. Corp. v. Ground Improvement Techniques, Inc., 645 So. 2d 420, 421 (Fla. 1994). When unsuccessful work is intertwined with work on successful issues, reasonable fees should be awarded. Warshall v. Price, 629 So. 2d 905, 907 (Fla. 4th DCA 1993). However, if the winning issue could have been researched, litigated and billed without the losing issue being addressed, then the work was not intertwined. Id. at 908.
After reviewing the Court record and the timesheets summitted by the Herssein Law Group, this Court finds that the request for 794.8 hours included unnecessary, excessive and duplicative claims. Mr. Herssein expended an inordinate amount of time on issues and claims that ultimately proved unsuccessful or were abandoned. Not only did Mr. Herssein bill for the time spent initially researching and drafting these claims, but when challenged on the merits, he abandoned those claims. This Court also finds that many of the hours claimed by Plaintiff are not supported by the timesheets provided or the testimony of his fee expert. Fla. Birth-Related Neurological Injury Comp., 633 So. 2d at 1110-11 (under the “hour setting” portion of a fee award it is important to distinguish between the “hours actually worked” and the “hours reasonably expended.”).
The drafting of the initial Complaint and the filing of an Amended Complaint are examples of Plaintiff’s excessive billing. Mr. Herssein billed 21.9 hours for researching and drafting the Complaint against Jefferson and Allianz; 35.3 hours reviewing, researching, and drafting a response to Defendants’ Motion to Dismiss the Complaint; and 2.2 hours researching Defendants’ threat of section 57.105 sanctions for the FDUPTA and the misleading advertising counts in the Complaint. In response to the section 57.105 threat, Plaintiff amended the Complaint, removed the sanctionable counts, and billed an additional 21 hours for the time spent drafting the Amended Complaint. The language in the remaining counts on the Amended Complaint was nearly identical to the language in the initial Complaint, except for the removal of the sanctionable language and the addition of American as a new Defendant in the case.6 This Court has therefore determined to reduce the 21.9 hours spent drafting the Complaint by 11.9 hours and reduce the time Mr. Herssein spent drafting the response to the Motion to Dismiss by 29.6 hours.7 This Court declines to award the 2.2 hours researching the section 57.105 notice and the 21 hours spent drafting the Amended Complaint simply to correct Mr. Herssein’s initial error. Defendants are also not required to pay for the time Mr. Herssein spent litigating his case against American. Altogether, Plaintiff billed Defendants 80.4 hours from the moment the Complaint was drafted to the time the Amended Complaint was filed with this Court. Of those 80.4 hours billed, only 15.7 hours are compensable.
After Defendants and American filed new Motions to Dismiss the Amended Complaint, Mr. Herssein billed for his time researching and drafting a response. While, Plaintiff’s response to Defendants’ Motion to Dismiss the Amended Complaint was nearly identical to his first response, Plaintiff still billed Defendants for 22 hours. Mr. Herssein also billed Defendants 34.9 hours responding to American’s Motion to Dismiss. Finally, Plaintiff billed 13.6 hours preparing for and attending a scheduled one-hour hearing on Defendants’ and American’s Motions to Dismiss the Amended Complaint. This Court has determined Plaintiff is entitled to 3 hours responding to Defendants’ Motion to Dismiss the Amended Complaint and 5 hours preparing for and attending the hearing on the Motions to Dismiss. This Court declines to award the 34.9 hours Plaintiff billed responding to American’s Motion to Dismiss the Amended Complaint. Therefore, out of the 70.5 hours billed, only 8 hours are compensable.
Plaintiff’s excessive billing can also be seen in his response to Defendants’ affirmative defenses. Mr. Herssein billed 6.2 hours on a Motion to Strike Jefferson’s first affirmative defense while Mr. Fritz billed 2.45 hours for the same work. Mr. Herssein used the almost identical language in Jefferson’s Motion to Strike to prepare a motion striking Allianz’s first affirmative defense. Mr. Herssein then billed 4 hours for himself and 3.75 hours for Mr. Fritz. In total, the Herssein Law Firm billed a combined 16.4 hours on the two Motions to Strike Defendants’ first affirmative defense filings. After Defendants filed amended affirmative defenses, the Herssein Law Firm billed another 13.4 hours on responses which were almost identical to the first Motions to Strike. The Herssein Law Firm repeated the same pattern in filing a response to Defendants’ third affirmative defenses, billing a total of 7.1 hours. Altogether, the Herssein Law Firm billed a total of 36.9 hours. The Court has determined that only 11.9 hours are compensable.
Plaintiff also filed multiple and substantially similar motions seeking section 57.105 sanctions against each Defendant for their affirmative defense filings. These motions were never heard by the Court. Yet, Mr. Herssein billed an additional 23.2 hours for the section 57.105 motions on top of the 34.9 hours for the Motions to Strike and 37 hours for seven Motions for Summary Judgment on Defendants affirmative defenses. Altogether, Mr. Herssein billed 95.1 hours responding to Defendants’ affirmative defenses. This Court has determined that 10 hours is a reasonable amount to bill for Plaintiff’s various Motions to Strike. This Court has determined not to compensate Plaintiff on his section 57.105 motion practice, which the Court finds was unnecessary, excessive, and ultimately unsuccessful.
Another example of excessive billing was, 18.7 hours billed for the time spent determining the amount of attorney’s fees the Herssein Law Firm was entitled to receive. While Plaintiff claimed that these billings were appropriate since there was a dispute finalizing the terms of the settlement agreement, the Court finds that entitlement to attorney’s fees was never at issue. As such, Plaintiff is not entitled to receive the 18.7 hours billed litigating the amount of attorney’s fees. North Dade Church of God, 851 So. 2d at 196 (“[I]n litigating over attorney’ [sic] fees, a litigant may claim fees where entitlement is the issue, but may not claim attorney’s fees incurred in litigating the amount of attorney’s fees.”).
These 261 hours (306.6 hours less 45.6 hours determined to be reasonable) are just a sample of the excesses identified by Defendants’ expert and confirmed by this Court. In contrast, Plaintiff’s expert subtracted just 6 hours, from the 794.8 hours claimed by the Herssein Law Group. It is therefore incumbent on this Court to assess the totality of the evidence and make determinations in accordance with the legal authorities. See Arkin Constr. Co. v. Simpkins, 99 So. 2d 557, 561 (Fla. 1957) (“It is elementary that the conclusion or opinion of an expert witness based on facts or inferences not supported by the evidence in a case has no evidential value.”).
Based on the guiding authorities, arguments of counsel and the testimony of Plaintiff’s counsel and both expert witnesses, this Court finds the Defendant’s expert reductions for Plaintiff’s timesheet are reasonable and persuasive except for the following changes:
1. This Court modifies the number of hours for entries #1-8 to allow for an additional 8 hours for Mr. Herssein.
2. This Court modifies the number of hours for entries #13-20, 55, 64, & 65-66 to allow for an additional 4.8 hours for Mr. Herssein.
3. This Court modifies the number of hours for entries #33-52 to allow for an additional 8 hours for Mr. Fritz.
4. This Court modifies the number of hours for entries #67-69, 75, & 76 to allow for an additional 1.5 hours for Mr. Herssein
5. This Court modifies the number of hours for entries #103-108 to allow for an additional 3 hours for Mr. Herssein.
6. This Court modifies the number of hours for entries #138-154, 256, 257, 275, 277-287, 459-462, and 465-471 to allow for an additional 4.9 hours for Mr. Herssein and an additional 4 hours for Mr. Fritz.
7. This Court modifies the number of hours for entries # 109, 110-118, 134, 157, 166, 185, 196, 199-201, 218, 222-23, 233, 234, 251, 253, 254, 295, 301, 305, 326-330, 377, 373, 386, 392, 430, 431, 457, 507, 511-535, 536-541, 640, 655, and 661-665 to allow for an additional 9.5 hours for Mr. Herssein and an additional 18.6 hours for Mr. Fritz.
B. The Hourly Rate
This Court finds that a reasonable hourly rate for Reuven T. Herssein is $525.00 per hour. Evidence was presented at the hearing in the form of depositions and elicited testimony that this was a reasonable hourly rate. This Court, based on the same evidence produced and presented at the hearing, finds that a reasonable hourly rate for Erik Fritz is $375.00 per hour.
This Court finds and adopts the stipulation of the parties that Maury Udell, the Plaintiff’s expert, expended 46 hours reviewing the timesheets and testifying in this case. Based on the evidence presented at the fee hearing, this Court finds that Maury Udell is entitled to an hourly rate of $550.00 per hour.
After reviewing the entire file, hearing testimony from witnesses on the issues involved in the case and the rates customarily charged in this particular locality for similar legal services, this Court finds the following number of hours and reasonable rates for the lawyers who worked on the case:
Attorney # of Hours Hourly Rate Lodestar
REUVEN T. HERSSEIN 82.6 $525.00 $43,365.00
ERIK FRITZ 64.6 $375.00 $24,225.00
It is therefore, ORDERED AND ADJUDGED:
1. The Court awards Plaintiff a lodestar of $67,590.00
2. The Court awards $ 355.00 for stipulated taxable cost.
3. Plaintiff shall recover his fee expert Maury Udell, Esq.’s cost at the loadstar of 46 hours of time, as stipulated by Defendants, at the hourly rate of $ 550.00 per hour for a total of $25,300.00
4. Plaintiff shall also be entitled to pre-judgment interest on Plaintiff’s attorney’s fees and costs from May 3, 2019 through the date of this order at the statutory rate as per section 55.03(1), Florida Statute, for a total amount of $3,948.96, calculated as follows:
a. May 3, 2019 through June 30, 2019 at 6.57% times 58 days totaling $709.34.
b. July 1, 2019 through September 30, 2019 at 6.77% times 92 days totaling $1,159.42.
c. October 1, 2019 through December 31, 2019 at 6.89% times 92 days totaling $1,179.97.
d. January 1, 2020 through February 21, 2019 at 6.83% times 71 days totaling $900.23.
5. Plaintiff shall recover the total attorney’s fees, costs, expert costs, and prejudgment interest in the amount of $97,193.96 from Defendants, AGA Service Company d/b/a/ Alliance Global Assistance and Jefferson Insurance Company, whose address is 9950 Maryland Drive Richmond, VA 23233, for which let execution issue.
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1Maury Udell, Esq. testified as Plaintiff’s expert and Mac Phillips, Esq. testified as Defendant’s expert. Both have previously testified as fee experts in insurance cases.
2Hurricane Irma formed from an African Easterly Wave and became a tropical storm on August 30, 2017. Irma quickly strengthened, attaining hurricane status on August 31. By the time Irma struck Bermuda on Wednesday September 6, it was a Category 5 hurricane with 185 mph winds. Hurricane Irma Local Report/Summary, National Weather Service, September 10, 2017.
3The maximum coverage was $376.81 per traveler and the Herssein family had six travelers covered under the policy.
4Plaintiff’s Amended Complaint, removing the FDUPTA and the misleading advertising counts against Jefferson and Allianz, was prompted by Defendants’ Notice of Intent to Seek 57.105 Sanctions against Mr. Herssein, based on Defendants’ exempt status as insurance companies. Affidavit of Maury L Udell, billing records from 12/26/2017, 7-8.
5While depositions were taken as part of Mr. Herssein’s attorney’s fee claim, no depositions were ever taken as part of the underlying substantive case.
6The American Airlines claims were not a part of the fee hearing.
7Defendants’ expert allowed a total of 2 hours for the drafting of the Complaint and no hours for the response to Defendant’s Motion to Dismiss the Complaint. This Count finds that the allowance advanced by Defendants’ expert was too low.
