3 Fla. L. Weekly Supp. 549c
Attorney’s fees — Insurance — Plaintiff in action against uninsured motorist insurer entitled to award of attorney’s fees where final judgment exceeded amount of demand for judgment by more than twenty-five percent — Multiplier of 2.0 appropriate where chance of success was approximately even at outset of case against insurer and where relevant market requires contingency fee multiplier to obtain competent counsel — Outset of case was commencement of claim against UM carrier once tortfeasor had tendered its policy limits and UM carrier had waived subrogation rights and consented to plaintiff accepting tortfeasor’s policy limits — No entitlement to award for time spent in prosecuting attorney’s fees issue
ROBERT CARTER, et ux., Plaintiff(s) vs. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Defendant(s). 15th Judicial Circuit in and for Palm Beach County. Case No. CL 91-12387 AO. November 14, 1995. Fred A. Hazouri, Judge.
FINAL JUDGMENT ON ATTORNEY FEES AND COSTS
This cause came on to be heard on Plaintiffs’ Amended Motion to Tax Attorney Fees and Costs against Defendant, NATIONWIDE MUTUAL FIRE INSURANCE COMPANY.
This Court finds that the Plaintiff is entitled to an award of attorney fees for time expended by Brian W. Smith, Esquire, since October 26, 1994, the date of a Demand for Judgment filed pursuant to Section 768.79, Florida Statutes. The Plaintiff is so entitled because the Final Judgment in this case exceeded the amount of the Demand for Judgment by more than twenty-five percent (25%). Furthermore, the Plaintiff is entitled to an award of attorney fees for time expended by Gary Russo, Esquire since October 26, 1994 for the same reason. The Court finds that it was reasonable for two attorneys to try this matter, in light of all of the evidence presented at the Final Hearing on the Motion to Tax Attorney Fees and Costs.
The Court further finds that Brian W. Smith, Esquire, reasonably expended 150 hours from the time of the filing of the Demand for Judgment through the verdict in this matter. This Court further finds that Brian W. Smith, Esquire, reasonably expended 55 hours of attorney time subsequent to the verdict prosecuting the Plaintiff’s claim for an award of attorney fees, but this Court has already ruled that the Plaintiff shall not recover an award for the time expended by Brian W. Smith, Esquire, in prosecuting the attorney fee issue.
The Court further finds that Gary Russo, Esquire, reasonably expended 75 hours since October 26, 1994, and the entry of the verdict in this matter. The Court finds that the Plaintiff is not entitled to an award of attorney fees for the time expended by Gary Russo, Esquire, in prosecuting the issue of taxation of attorney fees pursuant to State Farm and Casualty Co. v. Palma, 629 So.2d 830 (Fla. 1993).
The Court finds that $200.00 per hour is a reasonable hourly rate for the time expended by Brian W. Smith, Esquire. The Court finds that $150.00 is a reasonable hourly rate for the time expended by Gary Russo, Esquire.
This Court finds that the Plaintiff had a contingency fee agreement with both Brian W. Smith, Esquire, and Gary Russo, Esquire. Therefore, this Court finds that this case is one in which a contingency risk factor is appropriate pursuant to Standard Guaranty v. Quanstrom, 555 So.2d 828 (Fla. 1990). Based on the evidence and argument presented during the final hearing, the Court finds that success was approximately even at the outset of the case against NATIONWIDE and therefore a multiplier of 2.0 is appropriate. The Court finds that the “outset of the case” under these facts is the commencement of the claim against the uninsured motorist carrier once the tort feasor has tendered its policy limits and the uninsured motorist carrier has waived subrogation rights and consented to the Plaintiff accepting the tort feasor’s policy limits.
In determining whether the contingency risk multiplier is necessary, the Court finds that in this case the relevant market required a contingency fee multiplier to obtain competent counsel. The court finds that the Plaintiffs’ attorneys attempted but were not able to mitigate the risk of non-payment in any way. The Court specifically finds that, based on the evidence presented at the final hearing, there were numerous problems in the Plaintiffs’ case from the outset. This case involved minor property damage which the Defendant’s expert described as a rear-end tap. There was a pre-existing injury at the same cervical level that was at issue at trial. There was deposition testimony by the injured Plaintiff given just two weeks prior to the second accident. Additionally, that there were significant set offs that the Plaintiff needed to surpass before there would be a positive verdict for the Plaintiff. No single factor is controlling, but all of the circumstances in their totality surrounding the issues involved in this trial require a contingency risk multiplier.
The Court, in determining the reasonableness of the award of attorney fees (pursuant to Section 768.79(7)(a)), has considered the apparent merit or lack of merit in the claim at the time Demand for Judgment was made, the number and nature of offers made by the parties, the closeness of questions of fact and law at issue, whether at the time the Plaintiff made the Demand, whether Plaintiff had unreasonably refused to furnish information necessary to evaluate the reasonableness of the Demand, whether the suit was in the nature of a test case presenting questions of far-reaching importance affecting the non-parties, and the amount of additional delay, cost and expense that the Plaintiff reasonably would be expected to incur if the litigation should be prolonged.
The Court also finds that the reasonable costs expended by the Plaintiff in this proceeding amounts to $19,174.77.
The Court further finds that the Plaintiff reasonably incurred $1,650.00 in expert fees incurred in litigating the attorney fees issue. Accordingly, it is
ORDERED AND ADJUDGED that Plaintiff, ROBERT CARTER, shall have and recover against the Defendant, NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, the total sum of $103,324.77 which is itemized as follows:
a) $60,000.00 for time expended by Brian W. Smith, Esquire, from the date of the Offer of Judgment to verdict (150 hours x $200 per hour x 2.0 contingency risk multiplier)
b) $22,500.00 for Gary Russo, Esquire (75 hours x $150 per hour x 2.0 contingency risk multiplier)
c) Reasonable costs in the amount of $19,174.77
d) $1,650.00 for expert fees
The sum of $103,324.77 shall bear interest at the rate of 8 per cent per year for which let execution issue.
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