8 Fla. L. Weekly Supp. 462a
Attorney’s fees — Insurance — Lodestar amount calculated at $185 per hour for 35 hours — Where fee agreement provided that client would pay partial fixed fee of $1.00 per hour and the remainder of attorney’s fee was contingent upon obtaining a court-awarded fee, court can apply contingency risk multiplier only to portion of lodestar amount that was contingent — Application of a multiplier of 1.10 is appropriate — Time spent litigating the amount of fee is not compensable despite claim that under fee agreement client had a direct, personal pecuniary interest in litigation of the amount of the fee — Costs, including fee for expert fee witness, awarded — Pre-judgment interest awarded
ANGIE OVIEDO, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Defendant. County Court, 12th Judicial Circuit in and for Sarasota County. Case No. 96-2548-CC-11. April 17, 2001. Emanuel J. LoGalbo, Jr., Judge.
FINAL JUDGMENT AWARDING ATTORNEY FEES
On February 22, 2001, this cause came on for final hearing pursuant to the court’s December 2, 1999, order that Plaintiff (“Oviedo”) is entitled to reasonable attorney fees and costs. Plaintiff seeks the Court’s determination of a lodestar fee amount and applicability of a contingency risk factor or multiplier. Accordingly, the court must apply the analysis promulgated in Bell v. U.S.B. Acquisition Co., 734 So.2d 403 (Fla. 1999), and make findings as set forth therein.
Upon hearing evidence of the party’s respective expert witnesses, and the testimony of respective counsel for Plaintiff and Defendant, the court finds that plaintiff’s counsel reasonably expended thirty five (35) hours litigating the merits of this cause, and that a reasonable rate of $185.00 hourly should apply, for a lodestar amount of $6,475.00. The court further finds that plaintiff’s attorney was engaged to handle this cause on partial contingency adjustment basis and partial fixed fee basis, with the Plaintiff personally obligated to pay $1.00 hourly and the remainder of the hourly rate purely contingent upon obtaining a court-awarded fee.1 Plaintiff’s counsel testified that, although the plaintiff was essentially indigent, this mixed arrangement provided her with representation that she could afford while ensuring that she maintained a personal financial interest in the outcome of the case through and including fee proceedings.
The court must accordingly consider only whether to award and apply a contingency risk multiplier to that portion of the hourly rate which was contingent. Lane v. Head, 566 So. 2d 508, 511(Fla. 1990). Hence, a multiplier can be applied only to $184 of the hourly rate, or a total of $6,440, which is that portion of the lodestar amount that was contingent. The remaining $35.00 of the lodestar, representing that portion of the hourly fee that for which the client was personally obligated, for 35 hours, may not be enhanced. Id.
In this case, a multiplier is appropriate based on the evidence. The relevant market of attorneys who handle the instant type of matter in this court is such that it requires a contingency fee multiplier to obtain competent counsel. Plaintiff’s attorney was unable to mitigate the risk of nonpayment. The use of a multiplier in this case is justified based on the risk involved in this particular case, the successful results obtained, and the attorney-client fee agreement. Plaintiff’s success in the case was more likely than not at the outset, indicating a multiplier in the range of 1.00-1.50. The court determines that a multiplier of 1.10 shall apply to the contingent portion of the lodestar fee of $6,440, thus enhancing that portion of the fee to $7,084.00, to which must be added the fixed portion of the lodestar fee without enhancement, or $35.00 resulting in a principal fee amount of $7,119.00.
Plaintiff’s expert also testified that Plaintiff’s counsel reasonably expended at least 17.95 hours of additional professional time litigating solely the issue of the amount of the attorney fee. Plaintiff’s attorney also introduced time records and testimony showing that he expended at least this amount of professional time litigating the issue of amount. Plaintiff sought this attorney time also, arguing that under the specific terms of the fee agreement (see footnote, supra) the Plaintiff had a direct, personal pecuniary interest in the litigation of the amount of the attorney fees through completion of all issues of fee litigation, since she was obligated to pay the fixed portion for time spent on the fee litigation as well, and only from the fee recovery would Plaintiff attain satisfaction of the amounts she paid and became obligated to pay Plaintiff’s counsel for the fixed portion of the hourly fee.2 Defendant did not contest the amount of time expended litigating the issue of the fee amount, but objected to admission of such evidence as irrelevant, arguing that such time was not compensable. The court finds that the time expended litigating amount is not compensable pursuant to applicable case authority.
Plaintiff also sought costs, including court costs and an expert witness fee to compensate for Plaintiff’s costs in presenting mandatory expert fee witness testimony, which was given by Andrew B. Spark, Esq. The court finds Mr. Spark should be compensated at the hourly rate of $200.00 for four hours of his professional time. Plaintiff is also entitled to other costs, which the parties stipulated to be $91.00.
Plaintiff is entitled to pre-judgment interest on the principal amount, for the time period beginning with the date entitlement was determined (December 2, 1999) through the date of this judgment. Quality Engineered Installation, Inc., v. Higley South, Inc., 670 So.2d 929 (Fla. 1996). The Court therefore must award pre-judgment interest on the principal amount at the rate of 10% per annum, from December 2, 1999, through December 31, 2000, a total of 10.7945%; plus 11% per annum, or .03014% per diem, from January 1, 2001 through the date of this judgment. Hence, pre-judgment interest totals 14.0192% of the principal sum, or an additional amount of $998.02. This amount should become part of the single total sum due and owing to OVIEDO. Id. at 931. Accordingly, it is:
ADJUDGED that Plaintiff, ANGIE OVIEDO, shall recover from Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., attorney fees in the principal amount of $7,119.00, plus pre-judgment interest of $998.02, and costs of $891.00, for a total final judgment amount of $9008.02, with interest at 11% per year commencing on the date hereof for the remainder of this calendar year, and thereafter at the rate provided by Florida Statutes §55.03(1) (1994), for which let execution issue.
__________________
1 The fee agreement provides, in relevant part:
Client is unable to promise in good faith to pay Attorney his full hourly rate, and is able to pay only a portion of the hourly rate, with the remainder to be contingent upon recovery of attorney fees from the insurer. Client has paid, at this time, $10.00 toward the attorney fee, to be applied at the fixed rate of $1.00 hourly for the initial 10 hours expended by Attorney. Client agrees to pay Attorney at the fixed rate of $1.00 additional for each hour he expends on the merits of Client’s claims and on recovery of attorney fees and costs in the trial court and on appeal. Client understands that this is only a fraction of Attorney’s reasonable hourly rate and that Attorney will recover the remainder from the insurance company if such entitlement should arise. If such entitlement does not arise, Client will not be obligated to pay anything additional to Attorney, and will not be entitled to refund or forgiveness of the foregoing amounts paid or billed. Client understands that Client will be reimbursed the amounts Client has paid plus the amount Client will pay only upon recovery of the total attorney fees and costs from the insurance company, and only to the extent that such recovery is sufficient to reimburse such amounts. Client cannot otherwise afford to pay, and cannot in good faith promise payment of, any additional attorney fees to Attorney. Moreover, Client cannot afford to further risk payment of such attorney fees given the relatively small amount(s) Client believes are at issue. In lieu of Client’s promise to pay the remainder of Attorney’s hourly fee, Client authorizes and requests that Attorney be paid directly by the insurer(s) any and all attorney fees which the court should award during or after any court action, and that Attorney reimburse Client from such sums. Client grants Attorney a lien on all proceeds of any and all recoveries of fees and costs except for the amounts paid to Attorney by Client as set forth herein. Client also agrees to pay to Attorney any and all attorney fee checks or payments issued or made to Client by the insurance company for the payment of attorney fees, less the amounts paid to Attorney by Client as set forth herein.
Client acknowledges that Attorney is able to represent Client on the foregoing basis given the provisions of §627.428(1), Fla.Stat. and other provision of law, together with the terms of the subject insurance contract, which will entitle Client to recover both the fixed and the contingent portions of the attorney fee should Client obtaining judgment or otherwise prevail against any insurer(s) in any action pursuant to this authorization. Accordingly, every effort reasonably made, and all time reasonably expended, by Attorney pursuing such claims, shall be deemed to benefit Client directly whether or not Client is ultimately successful in any action.
2Plaintiff’s counsel testified that Plaintiff paid $10.00 of the fixed fee portion at the time the representation agreement was executed, but Plaintiff had not paid any more of the fixed fee portion although she was billed for and remained personally obligated to pay it.
* * *
