8 Fla. L. Weekly Supp. 401a
Insurance — Personal injury protection — Insured’s motion to tax attorney’s fees and costs with interest in action against PIP insurer which resulted in recovery of amounts owed to medical provider, interest on late payment to medical provider, lost wages, and interest on overdue lost wage claim — Motion granted
RAND DEUTSCH, Plaintiff, vs. REGAL INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. NC 00-13471-RH. March 26, 2001. Nancy Perez, Judge. Counsel: Diego C. Ascencio, P.A., North Palm Beach. Ray M. Christian, Raymond M. Christian, P.A., Palm Beach Gardens. Joseph Murasko, West Palm Beach.
ORDER ON PLAINTIFF’S MOTION TO TAXATTORNEYS FEES AND COSTS WITH INTEREST
THIS CAUSE came to be heard upon the Plaintiff’s Motion to Tax Attorneys Fees and Costs with Interest and the Court having heard the testimony of Gary Russo, Esq., Diego C. Asencio, Esq., and Howard Hughes, Esq. and having further considered the entire court file and all of the evidence adduced at the attorney fee hearing held on February 28, 2001, the court makes the following findings of fact and conclusions of law:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. TIME AND LABOR
The court finds that the time for attorney Diego C. Asencio of 25 hours up and until the time of the final settlement on interest was reasonable and necessary based on the fact that Mr. Hughes and Mr. Asencio’s testimony agree on that number of hours. The parties stipulated to Mr. Asencio’s co-counsel, Mr. Raymond Christian, receiving an award of $1,800.00 as his attorney fee.
2. NOVELTY, COMPLEXITY AND REQUIRED SKILL
The court finds that this case was not novel. However, the case did involve the need of a higher level of skill. There were issues of concurrent payment of PIP with workers compensation, possibility of a proposal for settlement, and lack of standing based on assignment of benefits of the sole medical bill at issue.
On November 14, 1999 Defendant responded by letter to one of Plaintiff’s medical providers, Palm Beach Orthopedic, stating for it to bill Workers Compensation as primary. This was in response to a bill in the amount of $2,187.36 for the services of Dr. David R. Campbell, M.D. However, Defendant does not appear to have verified whether Mr. Campell was authorized to treat by workers compensation. Defendant’s analysis to bill workers compensation was faulty. Plaintiff’s counsel Mr. Christian gave Defendant many opportunities before suit was filed to settle the PIP wage loss claims between October 15, 1999 when he submitted the PIP application until July 21, 2000 when suit was finally filed. No PIP benefits had been paid prior to suit. Nevertheless, at the hearing, both parties agreed that Defendant indisputably owed PIP benefits on Dr. Campbell’s bill with interest.
The Plaintiff’s problem in relying upon Defendant’s liability for Dr. Campbell’s bill is that it had been marked as accepting assignment of benefits. The presence of an assignment would have meant that the Plaintiff would have no standing to bring an action to collect the bill. Livingtston v. State Farm, 25 Fla. L. Weekly D533 (Fla. 2d DCA Mar. 3, 2000). While the Plaintiff would still have a wage loss claim, this case was the weaker of the two PIP claims.
Plaintiff’s counsel recognized at the outset that a proposal for settlement authorized under the case of U.S. Security Ins. Co. v. Cahuasqui, 760 So.2d 1101 (Fla. 3d DCA 2000) for Dr. Campbell’s bill would have made the case very risky and that attorneys fees could have been cut off under the case of Scottsdale Ins. Co. v. DeSalvo, 748 So.2d 941 (Fla. 1999) if Defendant had made such a proposal. The billing records of counsel reflect that the Plaintiff was advised about the risk of a proposal for settlement under Cahuasqui.
The Defendant’s fifteen (15) affirmative defenses show the level of complexity that has been thrust on an area of law which could be more simple. These affirmative defenses included “bills are not reasonable and necessary”, “medical expenses not related”, “violation of 59N-17.0065 FAC and violation of F.S. §460.413”, “suit prematurely filed under F.S. §627.736(6)”, “lack of standing”, “case not ripe”, and “failure to provide notice under F.S. §627.736(5)(b)”.
3. 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 Plaintiffs’ counsel ranges between $200.00 per hour to $300.00 per hour. Plaintiff has requested $300.00 per hour for Mr. Asencio.
$300.00 per hour is well within the range of fees charged in the community for similar work. The court finds this based on the testimony that Mr. Asencio has been board certified in civil trial law since 1989 and that Mr. Asencio has been practicing for over eighteen (18) years as a trial lawyer. This is also based on the testimony of Mr. Russo who indicated that attorney Asencio should easily command such a market rate and that attorneys of lesser skill would spend much more time doing similar work.
4. AMOUNTS INVOLVED AND RESULTS OBTAINED
Plaintiff’s counsel sought and obtained payment in full the limits of PIP coverage with interest. On December 19, 2000 Defendant agreed to pay:
$1,749.89 to Palm Beach Orthopedic Group (80% of its bill)
$174.97 Palm Beach orthopedic (interest on the late payment)
$8,250.11 to Plaintiff (lost wage claim)
$983.23 to Plaintiff (interest on overdue lost wage claim).
5. TIME LIMITATIONS IMPOSED BY THE CIRCUMSTANCES
The court finds that this factor is not applicable to this case.
6. CONTINGENT NATURE OF FEE, RELEVANT MARKET, AND MITIGATION OF RISK
Plaintiff had a pure contingent fee contract with Mr. Asencio. Mr. Asencio undertook the entire risk of the loss of recovery in this case. 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 Loadstar 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. In Lapour the PIP insurer surrendered without filing an answer. The adjuster in Lapour offered to pay without hiring a defense attorney. The suit was simply needed to “coax” U.S. Security to pay PIP benefits. There was no issue of standing. There were none of the other issues that were raised in the affirmative defenses in this case.
Mr. Hughes agreed that Defendant could have evaluated this case as one which had a good likelihood of success. Mr. Asencio had no problem making that evaluation. In State Farm Mut. Auto. Ins. Co. v. Moore, 597 So.2d 805 (Fla. 2d DCA 1992) the court considered the obstinance of an insurer as a valid basis to award a multiplier. The Moore court found the maximum multiplier of 2.5 was justified based in part on the obstinance of State Farm in that case. Here Defendant failed to resolve this action early when it knew or should have known that Plaintiff was likely to succeed.
The court finds that it would have been difficult if not impossible to get proper legal representation on this case without the use of a contingency contract and the fee multiplier. Attorneys of skill and reputation similar to Mr. Asencio will not accept a case such as this one without the possibility of a multiplier.
7. CONTINGENCY RISK MULTIPLIER
Plaintiff’s expert witness Mr. Russo testified that the likelihood of success in this case was about even in his opinion. Mr. Russo’s testimony contrasted with Mr. Asencio’s opinion that success appeared good at the outset. However, success was not assured. There were various issues which could make that success difficult to obtain. The court finds that at the outset this case had a good likelihood of success. Thus, it is within the court’s discretion to apply a multiplier of up to 1.5. The court awards a multiplier of 1.5 based on presence of the issues discussed above.
8. REASONABLE COSTS
The parties stipulated to the costs of $200 filing fee and $15.00 service fee and a court reporter charge of $226.70 for the transcript of the hearing on Defendant’s objections and motion to dismiss held in this matter.
9. EXPERT WITNESS FEES OF ATTORNEY
When the expert witness in a fee hearing expects to be paid for her 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. Russo testified without contradiction that he expended 4.25 hours for meeting with attorney Asencio, reviewing attorney Asencio’s file in preparation for the testimony and in testifying. Mr. Russo also testified without contradiction that his hourly rate for such testimony is $250.00 per hour. Accordingly, the court finds that Plaintiff is entitled to $1062.50for this expert witness fee.
10. 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). The parties have stipulated to Plaintiff’s entitlement to this prejudgment interest. The case was not resolved until the mediation of December 19, 2000. Thus, prejudgment interest on attorneys fees and costs shall accrue interest at the rate of 10% from that date.
Based on the above, the court finds and it is ORDERED AND ADJUDGED that the reasonable attorneys fees, costs and interest in this case are:
A. Attorney time of 25 hours for Diego C. Asencio (number of hours reasonably and necessarily expended) X $300.00 per hour (reasonable hourly rate) = $7,500.00 (Loadstar) X 1.5 (Contingency Risk Multiplier) = $11,250.00 total attorneys fees.
B. $1,800.00 total attorneys fees for Mr. Raymond Christian based upon the stipulation of the parties.
C. Total costs of $441.70.
D. Expert witness fees for Mr. Russo for 4.25 hours of preparation and testimony time = $1062.50 (at $275.00 per hour).
E. Total fees and costs of $13,491.70 shall accrue interest from December 19, 2000 to February 28, 2001 at the rate of 10% (per diem of $3.70 for 71 days = $262.70). Thus, the sum of $14,816.90 ($13,491.70 + 262.70 +1062.59) shall accrue interest at the rate of 10% from the date of February 28, 2001 and judgment shall be entered thereon.
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FINAL JUDGMENT
Pursuant to the attorney fee hearing held in this matter and the order on attorneys fees and costs rendered in this action,
IT IS ORDERED AND ADJUDGED that the Plaintiff, RAND DEUTSCH, recover from the Defendant, REGAL INSURANCE COMPANY, the sum of $14,816.90 with interest from February 28, 2001 as provided in F.S. §55.03, for which sums let execution issue.
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