3 Fla. L. Weekly Supp. 451b
Insurance — Personal injury protection — Attorney’s fees — Multiplier of two appropriate in determination of amount of attorney’s fees where claim was an undesirable PIP claim so that it would have been difficult to obtain counsel on a standard contingency fee and where chance of success was less than 50% at the outset — Attorneys entitled to interest on attorney’s fees from date of verdict through date of fee hearing — Expert witness on attorney’s fees entitled to compensation
DAWN JELLISON, individually, Plaintiff, vs. CAPITAL ENTERPRISE INSURANCE COMPANY, Defendant. In the County Court in and for Seminole County. Case No. 94-417-CC-20-F. September 15, 1995. Fredric M. Hitt, Judge. Counsel: Mark A. Nation of Page, Eichenblatt, Perkins & Nation, P.A., Maitland, for Plaintiff. A. Craig Cameron of Cameron, Marriott, Walsh, Hodges & D’Assaro, for Defendant.
FINAL JUDGMENT AWARDING
COSTS AND ATTORNEYS FEES
This cause came on to be heard before the Court on September 15, 1995, on the plaintiff’s application for attorney’s fees and costs. Having viewed the evidence presented, the court file and having heard live testimony, the Court makes the following findings:
1. The Plaintiff’s attorneys are claiming 151.72 hours at $150 per hour for the prosecution of this case. Both the Plaintiff’s and the Defendant’s experts have testified that 151.72 hours and $150 per hour are reasonable for this case.
2. The Court finds that 151.72 hours were reasonably expended by Plaintiff’s attorneys in the prosecution of this case.
3. The Court further finds that $150 per hour is a reasonable rate of pay for Plaintiff’s attorneys in this case.
4. Mark Harris, D.C., the chiropractor who treated the Plaintiff in this case, and whose treatment was terminated by Defendant, testified that he has been practicing 8 years as a chiropractor. Dr. Harris further testified that during that time, a majority of his patients have had their PIP benefits terminated after 4 – 6 months of treatment. In the past, he has endeavored to have attorneys prosecute PIP cases on behalf of his patients, however, the patients’ attorneys have generally refused to pursue PIP cases. During his 8 years of practice, he has only testified in one PIP deposition, and that is in this case. He knows of no cases wherein an attorney has prosecuted a PIP case on behalf of one of his patients and had the PIP benefits reinstated.
5. The Plaintiff’s expert witness, Clayton Simmons, Esq. testified that the relevant market requires a contingency fee multiplier to obtain competent counsel in PIP cases. Plaintiff’s expert witness testified that PIP cases were undesirable and not economically worthwhile. Plaintiff’s expert further testified that he avoided handling PIP claims because his time was more productive in handling other matters.
6. The Court finds the case to be appropriate for the use of a multiplier under the Rowe and Quanstrom guidelines. The Court finds that the litigation presented an undesirable claim, and that with the issues related to causation, it would have been difficult to obtain counsel on a standard contingency fee unless a multiplier was used.
7. The court finds that, at the outset of the handling of the case, the Plaintiff’s chances of success were less than 50%, and that a multiplier of 2.0 is appropriate. At the outset of this case the Plaintiff faced the following facts:
ù This was a “minor” rear-end collision.
ù Plaintiff admitted that she was not hurt at the time of the accident.
ù Plaintiff drove her car to work after the accident.
ù Plaintiff did not experience any pain for at least 30 days after accident.
ù At the time she began experiencing pain, Plaintiff did not associate the pain with the automobile accident.
ù Plaintiff did not seek medical attention until approximately 18 months after the accident.
ù Plaintiff presented to Dr. Harris with complaints of mid-back pain due to lifting luggage.
ù Plaintiff’s intake form with Dr. Harris states that the pain began 3 weeks prior.
ù Plaintiff admitted that she was self-manipulating her own neck numerous times per day every day.
ù IME concluded that Plaintiff’s pain was “solely and totally a function of her habit of excessive self-manipulation.”
ù Plaintiff’s pain was possibly due to her waitressing and working at a computer.
ù The Defendant put forth an expert chiropractic witness who through his own testimony acknowledged that he had “never lost a PIP case” when testifying for an insurance company.
8. Plaintiff’s attorney undertook the representation of Plaintiff on the basis that if the Plaintiff did not prevail, he would receive no fee, and that if the Plaintiff did prevail, he would accept as his fee and costs whatever the Court awarded. The Plaintiff was a single mother who indicated during the trial that she could not afford to seek medical care because the cost was prohibitive. It is unlikely that she would have been able to pay for an attorney to represent her on an hourly rate, nor afford the cost of litigation. Thus, counsel for the Plaintiff was unable to mitigate the risk of non-payment in any way.
9. A reasonable attorney’s fee for the Plaintiff’s attorneys for the underlying claim is therefore calculated as follows: 151.72 hours x $150 per hour x 2.0 = $45,516.
10. The Court further finds that $4,172.19 is due and payable to the Plaintiff’s attorneys as and for costs associated with the prosecution of the Plaintiff’s claim.
11. Plaintiff’s attorneys are entitled to interest on the attorney’s fees at 8% from the date of the verdict through the date of the fee hearing (98 days) on $45,516: $977.66. Orlando Regional Med. Ctr. Inc. v. Chmielewski, 573 So.2d 876 (Fla. 5th DCA 1990).
12. Plaintiff’s expert witness on attorneys fees, Mr. Clayton Simmons, is entitled to be compensated for the time he expended in preparing to testify and testifying in this case. Mr. Simmons expended 1 hour in this case, and a reasonable hourly rate for Mr. Simmons is $160 per hour. See Stokus v. Phillips, 651 So.2d 1244 (Fla. 2d DCA 1995).
It is therefore, ORDERED AND ADJUDGED that:
1. Plaintiff’s attorneys shall have and recover from the Defendant, CAPITAL ENTERPRISE INSURANCE COMPANY, the sum of $45,516.00 as attorney’s fees, together with the sum of $4,172.19 as and for costs associated in this matter.
2. Plaintiff’s attorneys shall have and recover from the Defendant, CAPITAL ENTERPRISE INSURANCE COMPANY, interest on the attorneys fees at 8% from the date of the verdict through the date of the fee hearing in the amount of $977.66.
3. Plaintiff’s expert witness on attorneys fees, Clayton Simmons, Esquire, shall have and recover from the Defendant, CAPITAL ENTERPRISE INSURANCE COMPANY, fees in the amount of $160.00 for the time expended in this case.
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