6 Fla. L. Weekly Supp. 640a

Attorney’s fees — Insurance — Motion for attorney’s fees and costs arising from underlying insurance dispute in which insured’s claim for property damage to her truck was denied, insurer completely denied coverage under insured’s policy, and insurer voided policy based upon position that insured had made material misrepresentations on her application for insurance — Hours spent by attorney were reasonable and necessary — Time spent was devoted to legal research, drafting of pleadings, keeping client informed of proceedings, and pursuing settlement discussions with insurer — Testimony of insurer’s expert witnesses that less time should have been spent is not persuasive — Fees for litigating entitlement to attorney’s fees — While it appeared that defense agreed that it owed a fee, there were issues of entitlement as to prejudgment interest, multiplier, attorney’s fees after entry of judgment, and market rate — Half of hours spent after plaintiff obtained settlement, including half of hours spent at hearing, will be allowed as litigation over entitlement to attorneys fees for purely legal issues — Allowing an enhanced fee by use of multiplier is a benefit to insured/client — Litigation concerning amount of hours is not compensable — Novelty, complexity and required skill — Case involved somewhat novel legal issues, and time spent by plaintiff’s counsel on legal research was not excessive — Market rate for fees in community — Plaintiff has requested hourly rate which falls within range of hourly fees charged in community by lawyers of reasonable comparable skill, experience and reputation performing similar services as those performed by plaintiff’s counsel — While amount involved was small, amount was substantial to plaintiff who was involved in year long dispute over damaged truck that was vital to her business and had to experience having her claims denied by her insurance company — Results obtained, including vindication that insurance company was wrong and settlement, were excellent — Contingent risk multiplier — Application of contingency risk multiplier to lodestar is within sound discretion of court and is appropriate — Plaintiff was not obligated to pay any fee absent a court award, and it would have been difficult if not impossible for plaintiff to get proper legal representation on facts of case without use of contingency contract and possibility of fee multipliers — Attorneys of skill and reputation similar to plaintiff’s counsel are not eager to pursue and will not accept contested insurance cases with voided policies and go to trial without possibility of multiplier — Contingency risk multiplier is appropriate where success at outset was unlikely — Fact that insurer chose to settle after suit cannot now support position that risk to plaintiff was not great at outset — Expert witness fees — Plaintiff entitled to expert witness fee where expert witness expected to be paid for his time in preparing and testifying in fee hearing — Prejudgment interest — Plaintiff entitled to prejudgment interest on attorney’s fees and costs from date of resolution of case — Prejudgment interest on attorney’s fees and costs shall accrue at rate of 10% from date on which coverage was resolved by entry of judgment and date plaintiff obtained settlement — Attorney’s fees and interest will be awarded in merged total with post-judgment interest then accruing on merged total

DEBORAH L. GRIER, Plaintiff, vs. AMERICAN AMBASSADOR CASUALTY COMPANY, Defendant. 15th Judicial Circuit in and for Palm Beach County. Case No. CL-98-007272-AE. July 21, 1999. James T. Carlisle, Judge.

ORDER ON PLAINTIFF’S MOTION FOR ATTORNEYS FEES, COSTS AND PREJUDGMENT INTEREST ON ATTORNEYS FEES AND COSTS

THIS CAUSE came to be heard upon Plaintiff’s Motion for Attorneys Fees and Costs and the Court having heard the testimony of Deborah L. Grier (The Plaintiff), Bill Bone, Esquire (Board Certified Civil Trial Lawyer), Diego C. Asencio, Esquire (Board Certified Civil Trial Lawyer), Christoper Nesi (defense counsel) and Defendant’s attorney fee expert witness, Mark D. Gilwit, Esquire (a Plaintiff’s attorney with sixteen (16) years experience) and having considered the billing statements from Plaintiff’s counsel (Plaintiff’s Exhibit #2), and further having considered the entire file and all of the evidence adduced at the three (3) hour attorney fee hearing held July 16, 1999, the court makes the following findings of fact and conclusions of law:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. FACTS OF THE UNDERLYING INSURANCE DISPUTE

At the time of the loss, Plaintiff was an intelligent twenty-seven (27) year old single female who earned her living raising and caring for horses. Her 1996 income tax return (Plaintiff’s Exhibit #7) shows that she lost money in her occupation as a horse trainer. She could not afford to pay an attorney an hourly rate. She tried to have two (2) other attorneys handle her case: Lisa Morrison Armateur of Boca Raton and James Knight of Ft. Lauderdale. Neither attorney was able to assist her to recover. Mr. Asencio viewed this as a red flag for a difficult case. However, Mr. Asencio accepted her case on August 13, 1998 and she signed a pure contingency contract (Plaintiff’s exhibit #1).

The Plaintiff’s six (6) wheel pickup truck was damaged in an accident caused by an employee/friend on November 15, 1997. Plaintiff immediately began to suffer the financial pressure of not having the truck for her business. Her claim was one for property damage to the truck with her own insurance company under the comprehensive coverage of her policy. She initially tried to handle the claim herself. She filled out a questionnaire submitted to her by AMERICAN AMBASSADOR on December 23, 1997 wherein she stated that the truck’s use was 100% work related (Plaintiff’s Exhibit #4). She submitted a report of the accident on December 27, 1997 wherein she stated that the truck was being used at the time of the accident to take a horse to a show for the owner (Plaintiff’s Exhibit #3).

Prior to Mr. Asencio interviewing Plaintiff on August 13, 1998, AMERICAN AMBASSADOR had denied coverage in its entirety. AMERICAN AMBASSADOR voided the policy based upon the position that Plaintiff had made material misrepresentations in her application for insurance (Plaintiff’s Exhibit #5). The application (Plaintiff’s Exhibit #11) indicated that there were four (4) wheels on the client’s truck when the truck actually had six (6) wheels. The application also indicated the truck was for personal use. It was not. There was incorrect information on the application for insurance. These were not good facts for an insured’s case for coverage.

Mr. Asencio testified that at the outset he never expected that the case would settle. Ms. Lora Strozewski, a claims representative of AMERICAN AMBASSADOR, unequivocally denied coverage (Plaintiff’s exhibit #5). However, after suit was filed AMERICAN AMBASSADOR indicated that it wished to settle on September 4, 1998. Prior to this correspondence, it did not appear that the case would settle.

Any misrepresentation materially affecting a risk would invalidate an insurance policy even if the representation was made in good faith by the insured. See F.S. §627.409 and Life Ins. Co. v. Shifflet, 201 So.2d 715 (Fla. 1967); Continental Ins. Co. v. Carroll, 485 So.2d 406 (Fla. 1986). The insurer is allowed in Florida to rely upon the truthfulness of the statements in the application and is not required to make further inquiry. Swift v. North American Company for Life and Health Insurance, 677 F.Supp. 1145 (S.D. Fla. 1987); Shelby Life Ins. Co. v. Paolasini, 489 So.2d 89 (Fla. 3d DCA 1986) rev. den. 501 So.2d 1283 (Fla. 1986). In other words, even though Mr. Asencio’s client did not intend to deceive the insurer, the misstatement gave the insurer valid grounds to void the policy. Thus, the facts and law appeared to make success unlikely at the outset.

Plaintiff explained that she signed a blank application because she was in a hurry and claimed any incorrect information came from the agent and not from her. Mr. Asencio understood that when an insured is faced with a claim for voiding of a policy under F.S. §627.409, claimant’s counsel should carefully look into the possibility of establishing waiver and estoppel. There is waiver if an insurer knows of facts that would allow forfeiture of a policy and fails to act upon those facts. Johnson v. Life Ins. Co. of Georgia, 52 So.2d 813 (Fla. 1951) (Life insurer learned of ill health of insured during policy term continued to insure).

Mr. Asencio also knew that what is known by an insurance agent may also be imputable to the insurer. Hardy v. American Southern Ins. Co., 211 So.2d 559 (Fla. 1968). However, Mr. Asencio would have to prove that the agent was working for the insurer. Naturally, he hoped to establish 1) the agent knew the true facts and 2) the agent was the agent of the insurer. However, that meant recovery depended on whether the agent was a) the agent of the insurer or b) the agent of the insured. It also left open the possibility of the agent contradicting the Plaintiff’s story.

At the outset of case, Mr. Asencio doubted whether he could rely upon the insurance agent to be honest about what took place. Obviously, the agent would look very bad by agreeing that he had taken a blank application and then filled in all the information incorrectly. Moreover, candor could expose the agent to civil liability. Also, there was no case law that would have clearly implicated the agent as acting for the insurer at the time that Mr. Asencio evaluated the risk of this case on August 13, 1998.

At the outset, it was Mr. Asencio’s opinion that success was unlikely. Mr. Asencio advised the client that the case would prove to be most difficult due to the applicability of F.S. §627.409 and AMERICAN AMBASSADOR’s denial of coverage. This was based on Mr. Asencio’s previous experience with the hard positions taken by AMERICAN AMBASSADOR in prior litigation. There was nothing that indicated that this was a case that would be settled. On the contrary, Mr. Asencio thought the case would be taken to trial with the agent appearing as the insurer’s witness. Mr. Asencio believed that the case settled because AMERICAN AMBASSADOR found that the agent was in fact going to support his client’s story.

Prior to the settlement Mr. Asencio did quite a bit of legal research on whether the agent could be viewed to be acting for the insured based on the little information which he had. When doing his research he found the Second District case of RLI Ins. Co. v. Collado, 678 So.2d 1313 (Fla. 2d DCA 1996). This case was not helpful to the Plaintiff’s case. Collado held that insurance policy application containing material misrepresentations which was signed by an insurance agent rather than by the insured would not estop the insurer from rescinding policy if the agent was not the agent of the insurer but instead was acting on behalf of the insured. In other words, the insured lost in Collado notwithstanding F.S. §627.342(2).

What Mr. Asencio did not know at the time of his evaluation was that the Florida Supreme Court had accepted jurisdiction to review Collado on express and direct conflict with Gaskins v. General Insurance Co., 397 So.2d 729 (Fla. 1st DCA 1981) (insured asserted that insurance agency’s employee advised applicants that son’s name need not be included in application because he had his own automobile and his own insurance and court interpreted F.S. § 626.746(1) as creating an issue of apparent authority). However, it was Mr. Asencio’s impression that the Gaskins case was distinguishable. When Mr. Asencio read Gaskins it did not appear to him to expressly conflict with Collado. In short, Mr. Asencio believed there was no case law which was supportive at the outset.

However, on September 4, 1998 the Supreme Court came out with the decision of Almerico v. RLI Ins. Co., 716 So.2d 774 (Fla. 1998) which better defined the liability of insurers for the actions of agents (interestingly this is the very same date AMERICAN AMBASSADOR accepted coverage in the case and offered to settle). Almerico holds that there is civil liability on the part of an insurer who cloaks the agent with sufficient indicia of agency to induce a reasonable person to conclude there is an actual agency relationship. The Court found that F.S. §627.342(2) (which imposes liability on insurers who supply an agent with certain papers) applies even when the agent is licensed. This is an important decision which was helpful to Plaintiff on whether the agent’s actions or knowledge could be imputed to the insurer.

Mr. Asencio took Plaintiff’s case because he hoped and expected to get a 2.5 multiplier if Plaintiff was successful. Mr. Asencio testified that he would not have taken the case without the prospect of getting the 2.5 multiplier. He also believed in his client’s version of the facts. Plaintiff seemed credible to Mr. Asencio (she was truthful on the insurance forms after accident) and he liked her. Plaintiff testified for Mr. Asencio at the attorney fee hearing and was credible. She supported Mr. Asencio’s testimony that he knew he was taking a big chance by accepting her case on a pure contingency. The day after the contract was signed, Mr. Asencio also wrote to Plaintiff expressing the difficulty of the case in writing (Plaintiff’s Exhibit #10).

2. TIME AND LABOR

Litigation over the insurance coverage and settlement ran from August 13, 1998 to February 1, 1999. On February 1, 1999 Plaintiff signed a release in exchange for $26,500.00 not including attorney’s fees and costs which the parties agreed to resolve separately by settlement or by a fee hearing. The total number of hours shown on Mr. Asencio’s billing statement for that period is 24.80 hours.

The court finds that the 14.9 hours spent by Mr. Asencio from August 13, 1998 to September 15, 1998 (up and until the time of the entry of judgment on count II) was reasonable and necessary. There was a complete denial of coverage and Mr. Asencio was prudent to obtain a final judgment for his client establishing coverage. The time spent during this period appears to be devoted to legal research, drafting of pleadings, and keeping the client informed of the proceedings. None of the time appears out of line with the amount of work done.

The next time period in question runs from September 15, 1998 to February 1, 1999. AMERICAN AMBASSADOR argued that much of that time was unnecessary. The Court cannot find any unreasonable or unnecessary time. Mr. Asencio was diligent in pursuing settlement discussions with AMERICAN AMBASSADOR. A great deal of correspondence was traded between Mr. Asencio and defense counsel on the issue of settlement. Mr. Asencio acted properly by making sure that each offer was firm and in writing and that it was communicated to his client immediately. There was a time when attorneys could rely exclusively on verbal communication. Now it seems most attorneys find it necessary to put everything in writing. That may take more time but it is reasonable today. There are no facts in this case that make it unreasonable.

Prior to negotiations on the amount of the settlement Mr. Asencio also expended time trying to avoid the appraisal provisions of the policy. It was his judgment that having an appraisal hearing (appraisal is essentially arbitration in Florida) was not in his client’s best interest. He was successful in avoiding appraisal. This allowed his client the benefit of litigating in circuit court with a judgment in her favor establishing coverage.

The court is not unmindful of the testimony of Mr. Nesi and his expert Mr. Gilwit. Both these attorneys felt that less time should have been spent. However, the insurer did not respond to the initial demand by Mr. Asencio on September 11, 1998 (Plaintiff’s Exhibit #13). Mr. Asencio wrote two more letters following up on his demand by fax October 28th and October 30th (Plaintiff’s Exhibits #’s 16 and 30). Mr. Asencio then wrote again on November 3rd (Plaintiff’s Exhibit #18) and November 25th (Defense Exhibit #1). Yet no actual offer was made until December 21, 1998 after Mr. Asencio supplied defense counsel with an extensive package of documents on December 7th (many of which he believed the insurer already had in its file¹; Plaintiff’s Exhibit #14). Mr. Asencio attributed the first defense offers as prompted by a civil remedy notice of insurer violation under F.S. §624.155 (Plaintiff’s Exhibit #19) served December 7th.

Thereafter, AMERICAN AMBASSADOR tried to settle for much less than was demanded. There was an exchange of at least six demands and counter-offers between December 7th and December 28th when the case settled. Even after the insurer agreed to pay, Mr. Asencio had to write again on January 8, 1999 (Plaintiff’s Exhibit # 6) when no check arrived as promised and a motion to enforce the settlement had to be filed seeking penalty interest under F.S. §627.4265.

The court does not find the defense fact and expert witness testimony persuasive. The court finds there was stonewalling. Certainly, if an insurer wishes to contest a matter it can expect to have its opponent prepare well and spend the time necessary to prevail. It is no defense that an opponent prepares too well.

3. FEES FOR LITIGATING FEE ENTITLEMENT ISSUES

AMERICAN AMBASSADOR has taken the position that the attorneys fees and costs stopped on February l, 1999 when Mr. Asencio’s client obtained her settlement. The issue for the court’s determination with regard to entitlement was whether or not there was an unequivocal stipulation as to all issues of entitlement prior to the hearing on the matter of attorneys fees and costs. The court considered the testimony of Mr. Asencio that there had been letters sent in an attempt to pin down the opposing attorney as to whether there was agreement as to any entitlement issues. The attorney for the defense did not respond. The court finds that while it appeared that the defense agreed that it owed a fee, there was no agreement on whether the Plaintiff was entitled to prejudgment interest on the fee award, whether the Plaintiff was entitled to a multiplier, whether the Plaintiff was entitled to attorneys fees after the entry of judgment of September 14, 1998, and whether the market rate requested by the Plaintiff was appropriate.

The majority of the litigation over the attorneys fees centered around the multiplier and the number of hours. The court finds that the litigation concerning the amount of the hours is not compensable. State Farm v. Palma, 629 So.2d 830 (Fla. 1992). The Palma case holds that a Plaintiff may obtain attorneys fees for litigating entitlement to attorneys fees in a PIP case but not for litigation the amount of the fee. However, the Plaintiff has a fee contract that specifically permits litigation on the amount of the fee notwithstanding the Palma decision. Whether such a contract can provide for attorney fees on amount issues has never been addressed by any District Court of Appeals decision. Whether an attorney is entitled to recover fees in connection with attorney’s efforts to obtain fees depends on specific issue involved and whether work inures to the benefit of the attorney or to the benefit of the client. Seminole County v. Butler, 676 So.2d 451 (Fla. 5th DCA 1996). Diaz v. Santafe Health Care, Inc., 642 So.2d 765 (Fla. 1st DCA 1994) states at page 766 that “[i]n an appropriate case, the fee award may include time spent establishing entitlement to the use of a multiplier if the trial court is of the opinion that such time was of benefit to the client”.²

The circuit court opinion of Judge Kroll in the entitlement hearing in Palma v. State Farm, 3 FLW Supp. 231 (April 7, 1995) the issue of what constitutes “entitlement” was discussed. One “entitlement” issue was whether or not to award a multiplier. The court held that “[d]ebate as to an appropriate multiplier, if any, is a legal issue and falls under `entitlement’ ”. The court also held the insured was entitled to interest on the fee awards. This court finds that there were issues of entitlement as to the multiplier, the prejudgment interest and the market rate. The court will allow for half of the time spent after February 1, 1999 including half of the hours spent at the hearing as litigation over the “entitlement” to attorneys fees for the purely legal issues. The Court specifically finds that allowing an enhanced fee by use of the multiplier is a benefit to the insured/client.

The number of hours reasonably and necessarily expended after February 1, 1999 totals 15.2 (including time spent in the attorney fee hearing in this matter). The Court will allow for 7.6 hours which the court finds was spent on attorney fee entitlement.

4. NOVELTY, COMPLEXITY AND REQUIRED SKILL

The court finds that this case was somewhat novel. While the main issue was whether or not the policy was void, there were many other issues involved in addressing this question. There were agency issues and issues involving application of F.S. §627.342(2). Mr. Asencio had to decide on whether to take the issues head on with declaratory relief. Thereafter, Mr. Asencio had to decide on how best to approach the anticipated motion to compel appraisal. Despite the somewhat novel legal issues, the time spent by Mr. Asencio on legal research was not at all excessive.

5. MARKET RATE FOR FEES IN THE COMMUNITY

The court finds that the market rate for the hourly fees charged in the Palm Beach County area by lawyers of reasonable comparable skill, experience and reputation performing similar services as those performed by Plaintiff’s counsel ranges between $200 per hour to $300 per hour. Plaintiff has requested $250 per hour for Mr. Asencio. This is well within the ranges of fees charged in the community for similar work. Moreover, the defense stipulated to this hourly rate.

6. AMOUNTS INVOLVED AND RESULTS OBTAINED

The court finds that, while the amount involved ($14,000-$26,000 dispute) was small by circuit court standards, having a year long dispute over a damaged truck vital to a business (November 15, 1997 to February 1, 1999) would indeed be frustrating. While the amount may not seem like much to the legal community, it is understandable that the amount was substantial to the Plaintiff. Moreover, having claims denied by your insurance company is not a pleasant experience. Part and parcel of the results obtained is the vindication that the insurance company was wrong. During the testimony given by the defense expert witness it was admitted in front of the Plaintiff that AMERICAN AMBASSADOR made a “mistake”.

AMERICAN AMBASSADOR’s settlement offers steadily increased through the efforts of Mr. Asencio until the parties agreed to settle for $26,500.00. Mr. Asencio also made sure that Plaintiff retained salvage rights which AMERICAN AMBASSADOR attempted to contest despite the written offers. The results obtained for the Plaintiff were excellent. Mr. Asencio should have his fee enhanced for achieving these results.

7. TIME LIMITATIONS IMPOSED BY THE CIRCUMSTANCES

The court finds that this factor is not applicable.

8. CONTINGENT NATURE OF FEE, RELEVANT MARKET, AND MITIGATION OF RISK

Plaintiff had a pure contingent fee contract with the law firm of Diego C. Asencio, P.A. and Mr. Asencio assumed representation under that contract on a pure contingency. Mr. Asencio undertook the entire risk of the loss of recovery. The contract only allowed for a fee to be determined by the court. Plaintiff was not obligated to pay any fee whatsoever absent a court award. Therefore, the application of a contingency risk multiplier to the Lodestar is within the sound discretion of the court. While a contingency risk multiplier is not appropriate in a run of the mill insurance case such as U.S. Sec. Ins. Co. v. Lapour, 617 So.2d 374 (Fla. 3d DCA 1993), it has been amply shown this was not such a run of the mill case.

The court notes that, the leading case of Quanstrom v. Standard Insurance, 555 So.2d 828 (Fla. 1990) was itself a nondescript simple PIP case involving the issue of whether or not PIP coverage was available to an insured when he owned an inoperable motor vehicle. Another leading case, State Farm v. Palma, 555 So.2d 836 (Fla. 1990), involved a fee of over $200,000 for litigating a $600 thermography bill.

The court finds that it would have been difficult if not impossible for Plaintiff to get proper legal representation on the facts of this particular case without the use of a contingency contract and the possibility of a fee multiplier. Attorneys of skill and reputation similar to Mr. Asencio will not accept contested insurance cases with voided policies and go to trial without the possibility of a multiplier. The court heard the testimony of attorney Asencio that the multiplier persuaded him to take this case. Plaintiff testified that Mr. Asencio and she discussed the multiplier and how it helped her get counsel. The court finds that attorneys of skill and reputation are not eager to pursue such cases. Without a contingency fee multiplier such cases are highly undesirable. If the insurance company has made up its mind that it will contest the case, the risk of loss will always be present. This is exactly the type of case that requires a multiplier. In Palma a multiplier of 2.5 was found not to be excessive.

9. CONTINGENCY RISK MULTIPLIER

Plaintiff’s expert witness, Mr. Bone, testified that success was unlikely at the outset. There were various factors that made the case a greater risk. The court finds that success at the outset was indeed unlikely. The court further finds that a multiplier of 2.5 is appropriate. The court cannot determine the risk after the fact. Dreese v. Craftman Auto Electric, 620 So.2d 1097 (Fla. 4th DCA 1993) (multiplier should still be awarded based on risk when case first accepted even if recovery was achieved thru default). The court cannot judge the risk by considering the settlement which took place when it first appeared unlikely. Mr. Asencio reasonably presumed that AMERICAN AMBASSADOR was serious about voiding the policy. The fact that AMERICAN AMBASSADOR chose to settle after suit cannot now support the position that the risk to the Plaintiff was not that great at the outset. This only indicates that perhaps AMERICAN AMBASSADOR should not have chosen to deny coverage if it was not prepared to take its position to a final conclusion. The court does not find it persuasive that AMERICAN AMBASSADOR now claims this was a simple “mistake”. The difficulty of the case was further shown when Mr. Nesi repeatedly pointed to the application’s plain wording “NON-BUSINESS USE” which Plaintiff signed without reading.

10. EXPERT WITNESS FEES OF ATTORNEY

When the expert witness in a fee hearing expects to be paid for his time in preparing and testifying, the court has no discretion to deny the attorney an expert witness fee. Stokus v. Phillips, 651 So.2d 1244 (Fla. 2d DCA 1995). Mr. Bone testified without contradiction that he expended seven (7) hours for meeting with attorney Asencio, reviewing attorney Asencio’s file in preparation for the testimony and in testifying. Mr. Bone also testified without contradiction that his hourly rate for such testimony is $250.00 per hour and that Mr. Asencio had agreed to pay him that fee. Accordingly, the court finds that Plaintiff is entitled to $1,750.00 for this expert witness fee.

11. PREJUDGMENT INTEREST ON ATTORNEY FEES AND COSTS

Plaintiff is entitled to prejudgment interest on attorney fees and costs from the date of resolution of the case. Quality Engineering Installation v. Higley South, Inc., 670 So. 2d 929 (Fla. 1996). This case was resolved in two stages. First coverage was resolved by entry of judgment on September 14, 1998 (Period 1). The second stage was completed when Plaintiff was paid on February 1, 1999 (Period 2). Thus prejudgment interest on attorneys fees and costs for each time period shall accrue interest at the rate of 10% running from the appropriate date. The attorneys fees and interest will be awarded in a merged total with post-judgment interest then accruing on the merged total. Quality, Supra.

Based on the above, the court finds and it is ORDERED AND ADJUDGED that the reasonable attorneys fees and costs in this case are:

A. Attorney time of 14.9 for Mr. Asencio (number of hours reasonably and necessarily expended) X $250.00 per hour (reasonable hourly rate) = $3,725.00 (Loadstar) X 2.5 (Contingency Risk Multiplier) = $9,312.50 total attorneys fees (Period 1). These fees of $9,312.50 shall accrue interest from September 15, 1998 at the rate of 10% (per diem of $2.55 for 335 days = $854.25).

B. Attorney time of 9.9 hours for Mr. Asencio (number of hours reasonably and necessarily expended) X $250.00 per hour (reasonable hourly rate) = $2,550.00 (Loadstar) X 2.5 (Contingency Risk Multiplier) = $6,375.00 total attorneys fees (Period 2). These fees of $6,375.00 shall accrue interest from February 1, 1999 at the rate of 10% (per diem of $1.75 for 164 days = $287.00).

C. Attorney time of 7.6 hours for Mr. Asencio (number of hours reasonably and necessarily expended on entitlement to attorneys fees issues) X $250 = $1,900.00. No interest or multiplier shall be allowed for fees on the attorneys fees entitlement issues.

D. Expert witness fees for Mr. Bone for seven (7) hours at the rate of $250 per hour = $1,750.00.

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¹AMERICAN AMBASSADOR asserts the delay in determining the amount of damages was caused by Plaintiff’s failure to provide documentation. Mr. Asencio contended he previously had supplied these documents but again furnished the documents. Later defense counsel professed ignorance of anything in the file prior to his being associated with the case. This is inconsistent with the argument the necessary documentation was not in the file.

²However see “amended per curiam” opinion in Dixie v. Puzo, 5 Fla. L. Weekly Supp. 211 (15th Cir. 1996). Plaintiff maintains that Dixie v. Puzo is not binding precedent due to the fact that very issue it appears to address was never addressed or argued and there was no transcript on appeal.

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FINAL JUDGMENT

Pursuant to the attorney fee hearing held in this matter on July 16, 1999 and the order on attorneys fees and costs rendered in this action,

IT IS ORDERED AND ADJUDGED that the Plaintiff, DEBORAH L. GRIER, recover from the Defendant, AMERICAN AMBASSADOR CASUALTY COMPANY, the sum of $20,478.75 with 10% for the date of this judgment for which sums let execution issue.

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