6 Fla. L. Weekly Supp. 102b
Insurance — Attorney’s fees and costs — Insured prevailing in action against insurer
Additional ruling in this case at 5 Fla. L. Weekly Supp. 632a
JOANNA MCNALLY, Plaintiff, v. ALLSTATE INSURANCE COMPANY, Defendant. County Court, 20th Judicial Circuit in and for Collier County, Civil Division. Case No. 97-0464-SP-12-CAE. Florida Bar No. 0279374. October 16, 1998. Lawrence D. Martin, Judge.
ORDER ON PLAINTIFF’S MOTION FOR ATTORNEY FEES, PARALEGAL FEES AND COSTS
THIS CAUSE, came to be heard upon Plaintiff’s Motion for Attorney Fees and Costs, and the Court having heard the argument of counsel, the testimony of expert witnesses, having considered the billing and costs statements from Plaintiff’s Counsel, BREIDEN & ASSOCIATES; and being otherwise fully advised in the premises, the Court makes the following findings of facts:
I. FACTS OF THE CASE.
Plaintiff was injured in a car accident September 11th, 1992. On February 28th, 1997, suit was filed seeking recovery of payment of No-Fault benefits due under her policy within thirty (30) days as required by F.S. §627.736. The Complaint specifically alleged a right to interest and attorney fees if Allstate pays all or some of the disputed benefits before judgment is entered after suit is filed. Service of Process was accepted by the Insurance Commissioner March 11th, 1997 and forwarded to Allstate on March 12th, 1997. Allstate was in possession of suit papers prior to the scheduled pre-trial conference April 4th, 1997. On or about April 14th, 1997, Allstate made payment on bills for medical services of $370.00 plus interest.
On October 27th, 1997, a partial summary judgment was granted in favor of Plaintiff based upon Allstate’s payment of benefits after suit. The matter proceeded to trial on two issues, to wit: 1) a jury trial on disputed bills for chiropractic treatment totaling $400.00 2) a non-jury trial on disputed interest payment calculations. The jury found in favor of Allstate on the disputed bills for chiropractic treatment, while the Court found in favor of the Plaintiff on the disputed interest payments. McNally v. Allstate Ins. Co., 5 Fla. L. Weekly Supp. 632 (Fla. 20th Cir. 1998). The Court notes that at no time has Allstate made any settlement offers, and the file reflects that Allstate vigorously resisted attending Court ordered mediation.
Following the trials, Plaintiff timely moved for an award of attorney fees, paralegal fees and costs. Plaintiff also dispatched discovery relating to the issue. Defendant responded to most of the discovery requested by stating “none at this time”. However, Allstate stated without qualification that it would contest entitlement to interest on attorney fees and entitlement to a lodestar multiplier (Interrogatory answers 14 and 15).
II. TIME AND LABOR
Plaintiff was represented by counsel, BREIDEN & ASSOCIATES, for over twenty months from the first contact with the Plaintiff to receipt of verdict. The record reflects detailed billing statements showing approximately 142½ attorney hours and 27½ paralegal hours. The total hours reflects the total amount of time BREIDEN & ASSOCIATES spent on the entire action. The underlying public policy of F.S. §627.728 is to discourage insurers from contesting valid claims and to reimburse successful policy holders forced to sue to enforce their policies. Fewox v. McMerit Construction Co., 556 So.2d 419, 423 (Fla. 2nd DCA 1989). Under the statute, an insured or beneficiary who prevails is entitled to attorneys’ fees. The statute offers no similar prospect to the insurance company, nor does the statute say that the fees will be unavailable if the insured prevails on some but not all of the issues. Danis Ind. v. Ground Imp. Tech., 645 So.2d 420, 421 (Fla. 1994). A prevailing insured is one who has obtained a judgment greater than any offer of settlement previously tendered by the insurer. Danis, at page 421.
Under these circumstances, a trial judge must evaluate the relationship between successful and unsuccessful claims and determine whether the investigation and prosecution of the successful claims can be separated from the unsuccessful claims. Once it is demonstrated that the insured did not prevail on all of its claims, the insured has the burden of either allocating its attorney’s fees based on its successful claims or showing why the fee could not be allocated. The insured can meet this burden by showing that the claims were so interrelated that the unsuccessful claims did not substantially increase the attorney fees incurred. See, B&H Construction & Supply Co. v. District Board of Trustees of Tallahassee Community College, 542 So.2d 382 (Fla. 1st DCA 1989) (Trial court was unable to allocate because of number and complexity of claims involved), rev. denied, 549 So.2d 1013 (Fla. 1989).
Plaintiff offered expert testimony regarding allocating its fees based upon its successful claims or showing why the fees could not be allocated. The testimony consisted of breaking the file down into three primary areas: 1) hours clearly attributed to the unsuccessful claims, and therefore not allowable 2) hours clearly attributed to the successful claims and therefore allowable 3) hours that were interrelated with the unsuccessful and successful claims, therefore being subject to reduction so as to reflect the work performed on the successful claims. More specifically, the expert testified that 41.35 attorney hours and 2.51 paralegal hours were clearly attributable to work preformed on the successful claims and/or so interrelated that the unsuccessful claim did not substantially increase the attorney fees incurred. The expert testified that he identified 45.25 hours of attorney time where all but 10.9 hours could be allocated to the work preformed on the unsuccessful claims. Similarly, the attorney identified 24 paralegal hours in which all but 6 hours could be allocated to the unsuccessful claim. The remainder of the hours of services preformed prior to the trials the expert opined were not allowable. The Court finds that a total of 52.25 attorney hours and 8.51 paralegal hours are reasonable and necessary for services preformed by Plaintiff’s counsel on the successful claims.
III. CUSTOMARY FEES IN THE COMMUNITY.
Testimony was received concerning the customarily hourly fee charged in the Twentieth Judicial Circuit by lawyers of reasonable comparable skill, experience and reputation performing similar services to those performed by Plaintiff’s counsel. The testimony ranged from $100.00 to $125.00 per hour for attorneys who were not very skilled; $125.00 to $150.00 for experienced and skilled attorneys; and $200.00 to $250.00 and higher for attorneys of great skill and ability. The $200.00 per hour requested by Plaintiff’s counsel is well within the range of fees charged within the community for similar difficult and complex work as relates to specific issues in this case. The Court finds the rate of $200.00 per hour to be reasonable for services performed by attorney K. Jack Breiden.
Testimony was also received concerning the customary hourly fees charged in the Twentieth Judicial Circuit for paralegal assistance of reasonable comparable skill and experience performing similar services to those performed by Mr. Breiden’s office. The range of fees is between $45.00 per hour and $85.00 per hour. The Court finds the requested $65.00 per hour to be within the range and reasonable for services rendered.
Multiplying the reasonable hours times the reasonable hourly rate provides a lodestar of $10,450.00 for attorney K. Jack Breiden for performing services in the instant action, and $553.15 for paralegal assistants from Mr. Breiden’s office.
IV. MULTIPLIER.
Based upon all of the facts and circumstances, the Court, in its discretion, denies Plaintiff’ s request for a multiplier.
V. FEES FOR LITIGATING ENTITLEMENT TO FEES.
Plaintiff has also requested the Court to award attorney fees for the time expended by Plaintiff’s counsel in litigating the issue of entitlement of attorneys fees. Under the case of State Farm v. Palma, 629 So.2d 830 (Fla. 1993) the Court ruled such an award must be considered in so far as it related to “entitlement” as opposed to the “amount”. When Palma was back at the Circuit Court level, the issue of what constitutes “entitlement” was litigated. The insured’s counsel argued that the issue of whether or not to use a multiplier was an “entitlement” issue and not an “amount” issue. In the trial court opinion arising out of the Palma attorney fees hearing, Judge Krooll found for the insured on this argument. Palma v. State Farm, 3 Fla.L.Weekly issue. In the trial court opinion arising out of the Palma attorney fees hearing, Judge Krooll found for the insured on this argument. Palma v. State Farm, 3 Fla.L.Weekly Supp. 231 (April 7th, 1995). The Court held that “debate as to the appropriate multiplier, if any, is a legal issue and falls under “entitlement”.
Plaintiff’s counsel propounded discovery on the issue on attorneys fees and the issue of entitlement to a multiplier. The issue of entitlement to prejudgment interest on attorney fees was also not resolved at the time of the hearing. Clearly, entitlement issues are a matter of ongoing dispute. See Laloi, supra. From the testimony at trial, Plaintiff’s counsel has expended 6.65 hours on the entitlement issue, and the Court awards that amount at the rate of $200.00 per hour.
VI. EXPERT WITNESS FEE 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. 2nd DCA 1995). Attorney Bill McGrew testified that he spent 12 hours in review of the file and preparation for his testimony at trial. The Court also finds that the testimony of the expert witness was helpful to the Court in making its determination. Mr. McGrew testified without contradiction that his hourly rate for such testimony is $175.00 per hour. The Court finds the Plaintiff is entitled to $2,100.00 for the expert witness fee of K. Jack Breiden.
VII. PREJUDGEMENT INTEREST ON ATTORNEYS FEES AND COSTS.
Plaintiff is entitled to prejudgement interest on attorney fees and costs from the date of resolution of the non jury trial. This prejudgement interest on attorney fees and costs shall accrue interest at the rate of ten (10) percent from that date.
Based on the above, the Court finds and it is
ORDERED AND ADJUDGED that the reasonable attorney fees, paralegal fees and costs in this case are
a. Attorney time of 52.25 hours for K. Jack Breiden (number of hours reasonably and necessarily expended) times $200.00 per hour (reasonable hourly rate) equals $10,450.00.
b. Paralegal time of 8.51 for paralegal services of Breiden & Associates (number of hours reasonable and necessarily expended) times $65.00 per hour (reasonable hourly rate) equals $553.15.
c. Grand total of all fees prior to verdict in the instant action of $11,003.15 shall accrue interest from the date of verdict to the date of the entry of judgment at a rate of ten (10) percent. No evidence was presented as to costs. Grand total of all attorney’s fees after jury verdict for entitlement issue of $1,330.00 (6.65x$200.00) and expert witness fees of $2,100.00 ($175.00×12) with interest accrued as allowed by law.
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