4 Fla. L. Weekly Supp. 663a
Attorney’s fees — Insurance — Attorney’s fees awarded to insured who prevailed in suit against insurer arising out of delay in payment of personal injury protection benefits — Fees for legal assistant work disallowed on ground that no testimony was introduced directly or through expert witnesses concerning those fees — Application of 1.5 contingency risk multiplier is appropriate under circumstances — Hourly rate of $250 deemed appropriate in view of attorneys’ knowledge, skill and experience — Plaintiff may not recover for attorney time spent as result of plaintiff’s own misconduct, acts of omission or lack of cooperation, or for time attorneys spent litigating whether contingency risk multiplier should be factored into fee award — Court declines to award fees for hired attorney’s fees expert
MICHALE RIVERS, Plaintiff, vs. INTEGON GENERAL INSURANCE CORPORATION, Defendant. In the County Court in and for Palm Beach County, Civil Division. Case No. MC-95-7310-RL. January 3, 1997. Sandra K. McSorley, Judge. Counsel: Charles Ged, for Plaintiff. John Peterson, for Defendant.
FINAL JUDGMENT FOR ATTORNEYS FEES AND COSTS
THIS CAUSE came before the Court for hearing on Plaintiff’s Motion to Tax Attorneys Fees and Costs. Plaintiff appeared through Charles Ged, Esq. and the Defendant appeared through John Peterson, Esq. The Court heard testimony, received documentary evidence and heard the arguments of counsel. Based upon the foregoing, the Court finds as follows.
This case is a PIP suit where the Plaintiff sought recovery from his insurance carrier (the Defendant) for lost wages and chiropractic bills incurred as a consequence of an automobile accident. Plaintiff was the client of T.J. Cunningham, Esq. who, in turn, referred the PIP claim to attorney Diego Asencio. The testimony suggests that Mr. Cunningham served as co-counsel to Mr. Asencio and that Mr. Cunningham’s primary responsibility was keeping a difficult client informed about the proceedings. Suit was initiated by Mr. Asencio in May of 1995 and the parties ultimately resolved the underlying claims in mediation on November 30, 1995. By virtue of such agreeement, the Defendant was to pay $594.00 for lost wages, $2600.00 for chiropractic care, and statutory interest for the late payments. According to the testimony, the agreed-upon payments were not forwarded in an expeditious manner which thereby caused Plaintiff’s counsel to expend additional time to secure payment from the Defendant. Ultimately, the appropriate payments were made, and the Plaintiff now seeks recovery of attorneys fees and costs for both Mr. Asencio and Mr. Cunningham. Defendant has not disputed legal entitlement to attorneys fees pursuant to F.S. 627.428.
The Court has reviewed and considered the guidelines established in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), Standard Guarantee Insurance Company v. Quanstrom, 555 So.2d 828 (Fla. 1990), and Rule 4-1.5(2)(b) of the Rules Regulating the Florida Bar. In addition, the Court is mindful of the concerns expressed in Miller v. First American Bank and Trust, 607 So.2d 483 (Fla. 4th DCA 1992) and Ziontz v. Ocean Trail Unit Owners Association, Inc., 663 So.2d 1334 (Fla. 4th DCA 1993).
The determination of a fee award against an insurer may include consideration of the fact that the insured or beneficiary has not prevailed on all issues as well as the degree to which this has extended litigation or increased costs. Danis Industries Corporation v. Ground Improvement Techniques, Inc., 645 So.2d 420, 421 (Fla. 1994). Since the case at bar involves a settlement agreement wherein the Plaintiff received the benefits sought, this factor is inapplicable.
Although Plaintiff’s written Motion seeks fees for legal assistant work, no testimony was introduced directly or through the opinions of expert witnesses concerning such fees. Therefore, the absence of evidence forces the Court to exclude any award for such time.
The knowledge, skill, and experience level of Mr. Asencio is significant, particularly in PIP suits, and may appropriately be reflected in the premium hourly rate he seeks. Conversely, however, it also suggests that the necessary time spent would be smaller than that of a lawyer with lesser skill, knowledge, and experience. Indeed, prior to mediation, the time spent in discovery and motion practice was moderate. A moderate amount of time was similarly expended after mediation in efforts to secure payment.
Although a well-experienced attorney in other matters, Mr. Cunningham’s skill, knowledge, and experience with cases of this sort (PIP) is not at an equal par with that of Mr. Asencio. Similarly, this could be reflected in such attorney’s hourly rate. However, Mr. Cunningham’s role in this suit was essentially to deal directly with the client. Had Mr. Cunningham not performed this function, such task would have been left to Mr. Asencio. The evidence reflects that the Plaintiff was a particularly difficult and sometimes almost obstreperous client who routinely placed himself at odds with his counsel as well as with his own interests in the pending suit. In the Court’s view, misconduct, acts of omission, lack of cooperation etc. by the Plaintiff himself which caused his own attorneys to expend additional time is not time for which the Defendant should be held responsible. Moreover, duplicative work is not compensable. The evidence established little basis upon which the Court may conclude that all the time spent by Mr. Cunningham was to correct or modify the behavior of the Plaintiff. Therefore, the Court is left with the routine responsibility of assessing the reasonableness of the time expended by each lawyer for each identified task.
The Court has concluded from the evidence presented that 15.2 hours were reasonably expended by Mr. Asencio and 5.1 hours were reasonably expended by Mr. Cunningham. The Court has also determined from the evidence that $250.00 is a reasonable hourly rate for Mr. Asencio and that $250.00 is a reasonable rate for Mr. Cunningham in the context of his identified role. Accordingly, the lodestar fee for Mr. Asencio is $3,800.00 and $1,275.00 for Mr. Cunningham, for a combined total of $5,075.00.
Once the Court has determined the lodestar fee, the Court is required to consider whether a multiplier is appropriate and, if so, in what amount. The concept of a risk multiplier was addressed by the Florida Supreme Court first in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). In Rowe, the Court held that it may be necessary to apply a multiplier to compensate an attorney for the risk of non-payment. The appropriate multiplier set in that case was 1.5 to 3, depending on the likelihood of success at the initiation of the action.
After Rowe, the United States Supreme Court handed down Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711, 107 S. Ct. 3078 (1987), and Blanchard v. Bergeron, __ U.S. __, 109 S.Ct. 939 (1989). In a plurality decision, the Supreme Court in Delaware Valley noted the policy anomalies created by use of a multiplier: (1) the Defendant holding the most meritorious defenses — and presumably with the greatest likelihood of success at the beginning — pays the highest fees to the opponent if he loses; (2) application of a multiplier compensates a plaintiff’s counsel for other cases where he did not prevail and was therefore not paid; and (3) the virtual impossibility for a judge to determine retroactively the plaintiff’s likelihood of success at the institution of the action. (This latter problem is created because at the time that the amount of attorneys fees is being decided, the plaintiff has prevailed, and the judge is thereby being asked to determine the likelihood that the plaintiff made an incorrect decision in pursuing his suit). The Supreme Court limited the multiplier’s application to the exceptional case, and in general, to a limit of 1.33.
In Blanchard, the Supreme Court drew a distinction between fees awarded pursuant to a public policy effectuating statute and those awarded incident to a personal injury action where percentage-of-the-award contingency fees are common. The Supreme Court held that a contingency fee agreement between counsel and his client is but one factor in determining a reasonable fee.
The Florida Supreme Court revisited its Rowe decision in light of Delaware Valley and Blanchard in its opinion in Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990). In short, the Florida Court determined that a multiplier is not mandatory in a contingency fee case. Id. at page 835. [See also, United States Security Insurance Company v. Lapour, 617 So.2d 347 (Fla. 3rd DCA 1993).]
The Quanstrom Court identified three types of cases where a court may be asked to award attorneys fees. Although not all inclusive, they are: (1) public policy enforcement cases, (2) tort and contract claims, and (3) family law, eminent domain, and estate and trust matters.
According to Quanstrom, the court determining fees in a category (1) case must consider the twelve factors enumerated in Johnson v. Georgia Highway Express, 488 F. 2d 714 (5th Cir. 1974), which are:
(1) the time and labor required;
(2) the novelty and difficulty of the questions;
(3) the skill requisite to perform the legal service properly;
(4) the preclusion of other employment by the attorney due to acceptance of the case;
(5) the customary fee;
(6) whether the fee is fixed or contingent;
(7) time limitations imposed by the client or the circumstances;
(8) the amount involved and the results obtained;
(9) the experience, reputation, and ability of the attorneys;
(11) the nature and length of the professional relationship with the client; and
(12) awards in similar cases.
Quanstrom at 525-526, quoting Johnson.
The Court further stated that “[i]t is important to note that the existence of a contingency fee arrangement is but one of the factors to be considered.” Id. at 526.
For the category (2) tort and contract cases, the factors which a court must consider, and evidence of which must be presented, are:
(1) whether in the relevant market the ability to obtain competent counsel is dependent on a contingency fee multiplier;
(2) whether the risk of nonpayment has been mitigated by the attorney; and
(3) whether any Rowe factors apply, especially, the amount involved, the results obtained, and the nature of the fee arrangement in question.
Quanstrom, page 834.
The opinion goes on to establish that the permissible multiplier ranges from 1 to 2.5.
As it applies to insurance policy disputes, a contingency fee agreement includes one where fee recovery is dependent upon an award by court pursuant to statute. Accordingly, a multiplier, if otherwise appropriate, may be applied. Quanstrom page 835. [See also State Farm Fire & Casualty v. Palma, 555 So.2d 836, 838 (1990)].
In assessing the risk of success presented to Plaintiff’s counsel at the outset of this cause, the Court finds from the hearing’s evidence and the court record that this is a PIP suit for which the Plaintiff had better than an even chance to prevail. The client’s subsequently manifested personality defects do not factor into the consideration of the likelihood of success at the outset of the litigation process. However, the issues in dispute in the underlying cause nudge this case away from the “run-of-the-mill” PIP suit category. (See United States Security Insurance Company v. Lapour, supra at page 348). In summary, the Court concludes that an appropriate multiplier for this case is 1.5.
The Court specifically rejects Plaintiff’s contention that litigation over whether a risk multiplier should be applied to the lodestar fee in this cause is an issue of “entitlement” for which State Farm Fire and Casualty Co. v. Palma, 629 So. 2d 830, 833 (1993) contemplates recovery of attorneys fees. The issue of a risk multiplier relates exclusively to the amount of attorneys fees which the Court determines to be reasonable for the particulars of this lawsuit; it, therefore, is not a legal determination of whether the Plaintiff is entitled to recover attorneys fees from his adversary. As such, Plaintiff may not recover attorneys fees for the time his lawyers spent in litigating whether a risk multiplier should factor into the calculation of attorneys fees awarded to him for this lawsuit.
Finally, the Court declines to award fees for the hired attorneys fees expert. Travieso v. Travieso, 474 So.2d 1184 (Fla. 1985); United States Fidelity and Guaranty Co. v. Rosado, 606 So.2d 628 (Fla. 3rd DCA 1992).
Accordingly, it is hereby
ORDERED AND ADJUDGED that Plaintiff MICHALE RIVERS shall recover from Defendant INTEGON GENERAL INSURANCE CORPORATION the sum of $5700.00 as attorneys fees for Mr. Asencio, plus $1,912.50 as attorneys fees for Mr. Cunningham, which totals to a principal sum of $7,612.50, plus pre-judgment interest from November 30, 1995 in the amount of $124.08, for a total of $7,737.30, which shall accrue interest at the prevailing statutory rate, and for all of which let execution issue.
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