3 Fla. L. Weekly Supp. 133a
Attorney’s fees — Insurance — Plaintiff who prevailed in action to recover personal injury protection benefits entitled to award of attorney’s fees — Record refutes defendant’s assertion that case was a dispute between two insurance companies, and plaintiff would have been paid PIP benefits in due time without attorney’s involvement — Application of contingency risk multiplier appropriate under circumstances — Where plaintiff made demand for judgment and offer of settlement for attorney’s fees, and fee award announced by court exceeded by more than 25% the fee amount stated in demand and offer, plaintiff’s attorney is entitled to fees for time spent litigating attorney’s fees issue
Additional ruling in this case at 2 Fla. L. Weekly Supp. 265b
MARY WINT, Plaintiff, v. NORTH AMERICAN SPECIALTY INSURANCE COMPANY, INCORPORATED, a New Hampshire corporation, and STATE FARM FIRE AND CASUALTY COMPANY, an Illinois corporation, Defendants. County Court for Polk County. Case No. 93-SP12-1078. March 8, 1995. J. Michael Hunter, Judge.
ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND COSTS
THIS CAUSE having come on to be heard on February 17, 1995, upon the Plaintiff’s Motion for Attorney’s Fees, and the Court having heard the testimony of the Plaintiff’s attorney, and his expert witness, Gary W. Barrick, Esquire, and having heard the testimony of the attorney for Defendant, STATE FARM, Jonathan Trohn, Esquire, and having reviewed the evidence presented and the court file, and having heard argument of counsel for Plaintiff and for Defendant, NORTH AMERICAN, and being otherwise fully advised in the premises, the Court has made the following findings:
1. Plaintiff’s attorney, William J. Corda, has expended 59.5 hours in the prosecution of this claim as indicated in his time records, and those of the NORTH AMERICAN’S attorney. Plaintiff’s expert witness, Gary W. Barrick, Esquire, and STATE FARM’s attorney, Jonathan Trohn, Esquire, testified that Mr. Corda’s time was reasonable and necessary.
2. Defendant, NORTH AMERICAN, contended that the hours spent by Mr. Corda were not necessary since this was a dispute between the Defendant insurance companies, and the Plaintiff’s PIP benefits would have been paid in due time. A further contention was that Mr. Corda’s hours should have been limited to simply monitoring the suit. However, STATE FARM’s attorney testified that Mr. Corda’s involvement was critical to the resolution of this case. Mr. Corda introduced into evidence a letter addressed to both Defendants dated February 22, 1994, wherein he offered to cease his involvement in the case upon payment of the Plaintiff’s PIP benefits. Thus, NORTH AMERICAN could have limited Mr. Corda’s fees by paying the PIP benefits and then litigating the issue of ultimate responsibility with STATE FARM.
3. The necessity of Mr. Corda’s efforts is further evidenced by the fact that Plaintiff was the first to move for Summary Judgment. Only then did Defendants file their respective Motions for Summary Judgment. The Court also notes that once NORTH AMERICAN’s liability was established by the Court’s Partial Final Judgment dated April 20, 1994, it was only after four letters from Plaintiff’s attorney and the scheduling of a Final Hearing on damages that NORTH AMERICAN stipulated to a Final Judgment, subsequently entered August 12, 1994. That Final Judgment was not paid by NORTH AMERICAN until September 20, 1994, and only after another letter from Plaintiff’s attorney.
4. Plaintiff’s expert witness testified that a reasonable hourly rate for the services of Mr. Corda is $200. Plaintiff’s attorney has been a member of the Florida Bar for 20 years, is a Board Certified civil trial attorney, specializing in personal injury and insurance matters, including PIP cases.
5. The Court finds that 59.5 hours were reasonably expended by the Plaintiff’s attorney in prosecuting this claim up to September 20, 1994, the point in time when NORTH AMERICAN paid the Final Judgment amount due and owing to Plaintiff. The Court further finds that the reasonable hourly rate for the services rendered by Mr. Corda is $200 per hour.
6. Plaintiff’s expert witness testified that the relevant market requires a contingency fee multiplier to obtain competent counsel in PIP cases. Plaintiff’s expert witness also testified that PIP cases were undesirable and not economically worthwhile. Plaintiff’s expert testified that although he handles PIP claims and does PIP litigation, he has always done so while representing the client on a personal injury claim. Further, the Plaintiff’s expert witness testified that he has never handled a PIP claim for a client who was at fault in the accident, as in this case.
7. The Court finds this case to be appropriate for the use of a multiplier under the Rowe and Quanstrom guidelines. The Court finds that PIP cases are undesirable, especially when the Plaintiff is at fault in the accident. The Court further finds that the relevant market requires a contingency fee multiplier to obtain competent counsel.
8. With respect to a Quanstrom multiplier, the Court finds that at the outset of the case, Plaintiff’s success was unlikely, and a multiplier of 2.5 is therefore appropriate. This was not a “garden variety” PIP case. Neither Defendant seriously disputed the amount or necessity of medical treatment. Rather, each Defendant had what appeared to be a valid coverage defense at the outset of the case. Since the Plaintiff was not a named insured, nor a resident relative of STATE FARM’s insured, Nelda Cauley, STATE FARM denied coverage. Since the Plaintiff indicated on the rental agreement of NORTH AMERICAN’s insured that she was covered by STATE FARM, NORTH AMERICAN denied primary coverage. Further, the only legal precedent in the state of Florida on this specific situation at the outset was a circuit court decision out of Broward county. This decision held that a rental agreement shifted responsibility for PIP coverage to the renter, and determined that if the renter did not have PIP coverage, the insurer of the rental company was still not responsible for the renter’s PIP coverage. Several months after the Plaintiff herein, MARY WINT, filed her Complaint for PIP benefits, the Fourth District Court of Appeals reversed the Broward county circuit court’s decision referenced above. See McCue v. Diversified Services, Inc., 622 So.2d 1372 (Fla. 4th DCA 1993).
9. Plaintiff’s attorney undertook representation of Plaintiff on the basis that if 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 could not afford to pay Mr. Corda’s hourly rate of $200, and could not afford to pay the costs of litigation. Thus, the Plaintiff’s attorney was unable to mitigate the risk of nonpayment in any way.
10. The reasonable attorney’s fee for Plaintiff’s attorney for the underlying claim is calculated as follows: 59.5 hours x $200 per hour x 2.5 = $29,750.
11. The Court has reviewed the Plaintiff’s Memorandum in Support of Claim for Attorney’s Fees for Litigating the Amount of Attorney’s Fees. Although Plaintiff had signed a contingency legal services contract which purportedly obligated Plaintiff to pay her attorney for litigating the issue of attorney’s fees, Mr. Corda candidly admitted to the Court that he would not enforce the contract and require the Plaintiff to pay anything. The Court finds that Mr. Corda is not entitled to fees for litigating the amount of attorney’s fees on this basis. See U.S. Security Co. v. Cole, 579 So.2d 153 (Fla. 2d DCA 1991), State Farm Mutual Automobile Ins. Co. v. Moore, 597 So.2d 805 (Fla. 2d DCA 1992), Higley South, Inc. v. Quality Engineered Installation, Inc., 632 So.2d 615 (Fla. 2d DCA 1994), and State Farm Fire and Casualty Co. v. Palma, 629 So.2d 830 (Fla. 1993).
12. After the Court announced its findings with respect to attorney’s fees on the underlying claim, Plaintiff’s attorney presented the Court evidence that a Demand for Judgment pursuant to F.S. §768.79, and an Offer of Settlement pursuant to F.S. §45.061 had been made by Plaintiff to NORTH AMERICAN for attorney’s fees. Both Plaintiff’s attorney and NORTH AMERICAN’s attorney stipulated that the Court’s announced award of $29,750 exceeded by more than 25% the fee amount stated by Plaintiff in the Demand for Judgment and Offer of Settlement. Based upon this stipulation of counsel, the Court finds that Plaintiff’s attorney is entitled to fees for litigating the issue of fees pursuant to F.S. §768.79 and F.S. §45.061.
13. The Court finds that Plaintiff’s attorney reasonably expended another 10 hours in litigating the issue of the amount of his attorney’s fees. The Court finds that a multiplier of 1.0 is applicable.
14. The reasonable attorney’s fee for Plaintiff’s attorney for the litigation of attorney’s fees is calculated as follows: 10 hours x $200 per hour x 1.0 = $2,000.
15. The Court finds that this was a complex case, and Plaintiff’s expert witness, Gary W. Barrick, expended a total of 3 hours in preparation and testimony and was charging the Plaintiff’s attorney $200 per hour for his time. The Court finds that Gary W. Barrick is entitled to an expert witness fee of $600. This amount shall be added to the total award, and the Plaintiff’s attorney is directed to pay the witness fee from the award. See Travieso v. Travieso, 474 So.2d 1184 (Fla. 1985), Straus v. Morton F. Plant Hospital Foundation, Inc., 478 So.2d 472 (Fla. 2d DCA 1985), and United Services Automobile Association v. Smith, 528 So.2d 1353 (Fla. 4th DCA 1988).
16. Plaintiff’s total fee award is calculated as follows: for the underlying claim $29,750, plus $2,000 for litigating attorney’s fees, plus $600 for expert witness fees, for a total award of $32,350.
It is, therefore,
ORDERED AND ADJUDGED that:
Plaintiff’s attorney, William J. Corda, shall have and recover from the Defendant, NORTH AMERICAN SPECIALTY INSURANCE COMPANY, INCORPORATED, the sum of $31,750 as attorney’s fees, and the sum of $600 as expert witness fees, for a total of $32,350 (Thirty-two Thousand Three Hundred Fifty Dollars), that shall bear interest at the rate of 8% (eight percent) per year, for which let execution issue.
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