5 Fla. L. Weekly Supp. 778a
Attorney’s fees — Insurance — Personal injury protection — Attorney’s fees and costs awarded to insured who prevailed in action against insurer for interest and wage loss benefits
Affirmed in part; remanded at 7 Fla. L. Weekly Supp. 389c
Additional ruling in this case at 5 Fla. L. Weekly Supp. 489a
DENNIS NENTWICK, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court in and for Palm Beach County, Civil Division. Case No. MS-94-20497-RJ. June 25, 1998. Stephen M. Cohen, Judge.
ORDER ON PLAINTIFF’S MOTION TO TAX COSTS AND ATTORNEYS’ FEES
THIS MATTER having come before the Court on Plaintiff’s Motion To Tax Costs and Attorneys’ Fees, and the Court having considered the evidence presented together with argument of counsel, and being otherwise fully advised in the premises, the Court finds:
The instant action is one for attorneys’ fees and costs resulting from Messrs. Cooksey’s and Ascencio’s representation of the Plaintiff in a personal injury protection claim against the insurer, Defendant UNITED AUTOMOBILE INSURANCE COMPANY (“UNITED”).
Initially, the Defendant denied Plaintiff’s claim based upon the assertion that it had not received the bills for the medical services which were the basis of the instant action and that, once received, it paid the bills without dispute. Accordingly, UNITED alleged that it was not responsible for a statutory interest for the allegedly late payments. Subsequent to the filing of the Amended Complaint and soon before the initially scheduled trial, Plaintiff’s counsel discovered that an additional claim existed for an alleged underpayment of a wage loss. Counsel elected to disclose the substance of the wage loss claim and elected to have the case proceed to a second mediation in an attempt to achieve a settlement.
Despite said attempts, the case did not settle and proceeded to a two (2) day non-jury trial before the Honorable Peter M. Evans. Said trial resulted in a Final Judgment dated February 20, 1998, in which the Plaintiff prevailed on both the interest and wage loss claims and, further, reserved jurisdiction for the taxation of attorneys’ fees and costs pursuant to §627.428, Florida Statutes (1997).
Ultimately no agreement was reached as to the nature and amount of attorneys’ fees and costs to be paid by the Defendant to Plaintiff and, therefore, the matter now comes before this Court.
The Plaintiff seeks a judicial determination and award of: (a) taxable costs; (b) reasonable attorneys’ fees for time expended through the date of the Final Judgment entered on the underlying claim herein, as enhanced by a multiplier; (c) an award of pre-award interest on attorneys’ fees.
The Defendant argues that there is no entitlement to a multiplier based upon the facts of this case. The thrust of Defendant’s position is that: (1) this was a $100.00 case that does not justify senior and experienced counsel investing substantial amounts of time in the prosecution of this action; (2) this was a clear case of entitlement in favor of the Plaintiff and no novel issues existed; and, (3) settlement of the instant case was rendered an impossibility by the continuing and escalating demand by Plaintiff’s counsel for amounts for attorneys’ fees and costs.
Based upon the evidence presented the Court finds that the Plaintiff shall recover $5,024.08 as taxable costs herein. Said amount represents: (a) the $85.00 filing fee for the instant County Court action; (b) $15.00 for service of process fee as testified to by Mr. Ascencio; (c) $163.75 as mediation fees; (d) $2,261.33 (the Court declines to award amounts for ASCII disks, and reporter fees for attending hearings and the trial as said expenses were not incurred in matters used before the Court at trial or at the instant hearing) as court reporter fees; (e) $499.00 as service fees for deposition and trial (the Court declines to award amounts for “rush” service requests); and, (f) $2,000.00 expert witness fee for the time of Yvette T. Murray, Esquire. The Court also rejects Plaintiff’s request for a recovery of costs for demonstrative exhibits, in the form of enlargements, as such were elective costs incurred and not necessary for the presentation and/or proof of Plaintiff’s claims.
In determining what a reasonable fee to be awarded Plaintiff, the Court has considered the testimony presented by both parties together with the holding in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985). The Court finds that the reasonable hourly fee for James P. Cooksey, Esquire in the instant case to be $200.00 and the reasonable hourly fee for Diego C. Ascencio, Esquire to be $250.00. Further, the Court finds that Mr. Cooksey reasonably dedicated 68.8 hours prosecuting the instant action through and including February 20, 1998, and that Mr. Ascencio reasonably expended 117.4 hours during the same period of time. Said number of hours is less than those expended by Plaintiff’s counsel and: (a) results from deduction of all time which could be construed as duplicitous as well as other appropriate adjustments; and, (b) is some ten (10%) percent less than the number of hours invested by Defendant’s counsel.
Said findings, in essence, reject Defendant’s argument that the number of hours invested by Plaintiff’s counsel for which they are to be compensated was wholly controlled by counsels’ forceful prosecution and unwillingness to settle on an amount for same.
The evidence presented at the instant hearing clearly established that at the time the Defendant, by its own admission, knew of the existence of Plaintiff’s claim, Plaintiff’s counsel had invested no more than 1.85 hours of time in the prosecution of this claim. The evidence sustains the finding that Plaintiff’s counsel made repeated attempts to convince the Defendant of the merits of the action and to settle the matter; however, Defendant and/or Defendant’s counsel rejected same and elected to defend the action in a protracted and forceful manner. Lastly, the Court notes that the time records of Plaintiff’s counsel support said conclusions, as they show that the vast majority of time invested in the prosecution of Plaintiff’s claim occurred in the one month period immediately leading up to and including the trial.
In making said finding, the Court is not unmindful of the authority cited by the Defendant which discusses the need for trial courts to reign in otherwise uncontrolled attorney fees, especially in cases involving a relatively small amount at issue. As noted by the defense in citing Ziontz v. Ocean Trail Unit Owners Ass’n., Inc., 663 So.2d 1334 (Fla. 4th DCA 1993):
[W]e have a special responsibility over attorney’s fees and need not abandon as judges what we knew as lawyers or — for that matter — our common sense.
Since the Florida Supreme Court’s decision in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), there seems to be a virus loose in Florida….the obsession with hours and hourly rates required by Rowe has spawned among lawyers moving for court awarded fees the multiple evils of exaggeration, duplication, and invention.” citing, Miller v. First American Bank and Trust, 607 So.2d 483 (Fla. 4th DCA 1992).
In fact, the Defendant could have effectively “cut-off” Plaintiff’s fee claim by unilaterally agreeing to pay Plaintiff’s substantive claim and a “reasonable amount” of attorneys’ fees and costs. Such a strategy would have put an end to any further accrual of fees and costs pursuant to applicable Florida case law. Not only must the Plaintiff’s Bar and the Courts bear responsibility for the “evils” described in Ziontz, the Defense Bar is required to take any and all actions necessary to prevent the onset of the “virus.” Unlike medicine, where there is no known cure for viruses, the law has the ability to stop the spread of virulent fees…honor and judgment. In the instant case the Defendant ultimately had the ability to provide the cure if it so desired. While the Defendant certainly had the legal right to contest liability as to the statutory interest and/or wage loss, by so doing it inherently must assume the risk of a significant loss if it did not receive a favorable judgement.
In determining the amount of a multiplier, Plaintiff’s counsel seeks a two-fold enhancement. Mr. Ascencio acknowledges that, at the time the case “walked into Mr. Cooksey’s door” it appeared to be a relatively strong case with minimal risk of loss and that such fact places this case in the range of multipliers of 1.0 to 1.5. He does advocate the imposition of the additional multiplier resulting in one of 2.0, due to Defendant’s “obstinate recalcitrance.” In support of said position, Plaintiff relies upon State Farm Mut. Auto Ins. Co. v. Moore, 597 So.2d 805 (Fla. 2nd DCA 1992), in which the appellate court noted that the trial court awarded a 2.5 multiplier, in part, based upon the finding of State Farm’s “manifest, if not obstinate, recalcitrance.” However, the facts presented in Moore, absent such a finding, provided the trial court with the legal basis to award a 2.5 multiplier and the finding of such behavior by the insurer allowed for an award at the upward limit of the otherwise applicable multiplier. The Court, in reliance upon the standards set forth in Rowe and Standard Guaranty Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990), finds that application of a multiplier of 1.5 is appropriate based upon the foregoing analysis.
Lastly, in Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So.2d 929 (Fla. 1990), the Florida Supreme Court opined that “…interest accrues from the date the entitlement to attorney fees is fixed through agreement, arbitration award, or court determination, even though the amount of the award has not yet been determined.” At page 931. The Court further stated that:
Using the date of the entitlement as the date of accrual serves as a deterrent to delay by the party who owes the attorney fees and is appropriate in conjunction with our decision that attorney fees are not to be assessed for litigating the amount of an attorney-fee award. State Farm Fire & Casualty Co. v. Palma, 629 So.2d 830 (Fla. 1993). The party who owes the fees can be protected against delay in determining the amount of fees and further accrual of interest through a tender of payment. We hold that interest ceases to accrue on amounts of attorney fees up to the amount for which an actual tender of payment is made.
Therefore, Plaintiff is entitled to an award of interest on its attorneys fees from February 20, 1998 to date.
Based upon the foregoing analysis, IT IS
ORDERED AND ADJUDGED that Plaintiff, DENNIS NENTWICK, recover from the Defendant, UNITED AUTOMOBILE INSURANCE COMPANY, court costs of $5,024.08, attorneys’ fees of $64,665.00, plus interest of $2,214.55, for a total of $71,903.63, that shall accrue interest at ten (10%) per year through December 31, 1998, and at the statutory rate thereafter, for which let execution issue.
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