3 Fla. L. Weekly Supp. 439a
Insurance — Attorney’s fees — Multiplier of 1.75 applied to lodestar figure in case of attorney who represented plaintiff prior to trial where attorney represented plaintiff under contingent fee contract, and likelihood of success was approximately even at outset of action — No multiplier applied to lodestar figure in case of attorney who did not appear in action until time of trial
RAMON LUNA, Plaintiff, v. PROGRESSIVE SPECIALTY INSURANCE COMPANY, Defendant. 11th Judicial Circuit in and for Dade County, General Jurisdiction. Case No. 94-23606-25. September 27, 1995. Phillip Bloom, Judge.
FINAL JUDGMENT AWARDING ATTORNEYS FEES
THIS ACTION came on to be heard on September 21, 1995, upon plaintiff’s motion to award attorneys fees. The plaintiff was represented by Michael A. Lipsky, Esq. and Joseph I. Lipsky, Esq. and the defendant by Mitchell Chester, Esq. The court heard, weighed and considered testimony from Alvin Weinstein, Esq., who appeared as an expert witness on behalf of the plaintiff, as well as testimony from Mr. Chester. After having reviewed the record, considered legal authorities submitted on behalf of both sides, and being otherwise duly advised, the Court makes the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Ramon Luna’s contract with his attorneys provided for a contingent fee in the event of a settlement or recovery of a judgment against the defendant in this action. The contract further provided his attorneys would be entitled to receive court-awarded attorneys fees or a percentage of all monies recovered, whichever is greater. In the event there was no recovery, his attorneys would not have been compensated. Plaintiff’s Exhibit 1.
2. Mr. Luna was initially represented by attorney Stephen Cahen, who later withdrew, leaving the plaintiff without legal representation.
3. The purpose of Florida Statute 627.428, is to discourage the contesting of insurance policies by carriers in Florida courts and to reimburse successful insureds for their attorneys fees when they are compelled to sue to enforce their insurance contracts. State Farm Fire & Casualty Co. v. Palma, 629 So.2d 830 (Fla.1993).
4. After a two day jury trial plaintiff was awarded a verdict of $22,500. Final judgment was entered by the Court on August 9, 1995 in the amount of $24,420.80, which included pre-judgment interest. Jurisdiction was reserved by the Court to consider an award of attorneys fees and costs. The defendant has now filed an appeal from the final judgment.
5. Attorney Alvin Weinstein, plaintiff’s expert witness, testified as to the determination of a reasonable fee, utilizing the lodestar procedure promulgated in Florida Patients Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985). The court notes it was impressed with and persuaded by the testimony of Alvin Weinstein, a highly respected and experienced trial attorney, who was the only expert witness testifying on the motion for attorneys fees.
6. Time sheets of the attorneys were received into evidence. The court has scrutinized them and specifically finds, after consideration of the Rowe factors, that plaintiff’s attorney Michael A. Lipsky reasonably expended 88.8 hours in this action. Co-counsel for the plaintiff, Joseph I. Lipsky, reasonably expended 27 hours. Plaintiff’s Exhibits 2,3. Defendant’s counsel testified his office expended 138 hours in defending this action.
7. The court determines the reasonable hourly attorneys rates to be $250.00, for Michael A. Lipsky, and $150.00 for Joseph I. Lipsky, based upon the rate charged in the local community by lawyers of reasonably comparable skill, experience and reputation for similar services.
8. Multiplying the reasonable hourly rates determined by the number of hours, produces the lodestar figure of $22,200 and $4,050, for Michael A. Lipsky and Joseph I. Lipsky, respectively.
9. Having arrived at that lodestar figure, the Court must then consider whether it should add or subtract from that fee based upon “a contingency risk factor” well as the “results obtained.” Rowe, supra; Standard Guaranty Insurance Company v. Quanstrom, 555 So.2d 828 (Fla.1990). The utilization of a multiplier is justified in this case.
10. The likelihood of success on behalf of the plaintiff was approximately even at the outset of this action. Issues raised by the defendant included failure of the plaintiff to cooperate after the filing of his claim, failure of the plaintiff to produce his car for inspection, failure of the plaintiff to appear for a sworn statement and the unusual circumstances of the theft of plaintiff’s motor vehicle.
11. In view of these and other issues raised by the defendant, the Court is persuaded by the testimony of Mr. Weinstein and so determines that a multiplier of 1.75 should be applied to the lodestar figure. Quanstrom, supra. While a multiplier is being applied to the fees of Michael A. Lipsky, no multiplier is applicable as to Joseph I. Lipsky attorneys fees, as he did not appear in this action until the time of trial.
12. Applying a multiplier of 1.75 to the lodestar of Michael A. Lipsky’s fees, $22,200, results in the total sum of $38,850. Adding the lodestar determination of Joseph I. Lipsky, $4,050, provides total fees to be $42,900.00.
Accordingly, it is, thereupon,
ORDERED AND ADJUDGED, that:
1. RAMON LUNA recover from the defendant, PROGRESSIVE SPECIALTY INSURANCE COMPANY the sum of $42,900.00 for his attorneys fees, which sum shall bear interest at the legal rate pursuant to Florida Statute 55.03, Fla.Stat. from the date hereof, until paid in full.
2. ALVIN WEINSTEIN, ESQ., recover from the defendant, PROGRESSIVE SPECIALTY INSURANCE COMPANY, the sum of $1,000.00 for his services as an expert witness, which sum shall also bear interest at the legal rate pursuant to Section 55.03, Fla.Stat from the date hereof until paid in full.
3. Execution, both on the attorneys fee award and the award to Alvin Weinstein, Esq., is stayed and shall issue without further order only if and upon affirmance of the appeal filed by the defendant from the final judgment dated August 9,1995.
4. The Court reserves jurisdiction over the enforcement hereof.
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