9 Fla. L. Weekly Supp. 854a
Insurance — Attorney’s fees — Party entitled to recover fees incurred in litigating applicability of multiplier — Use of contingency fee muliplier is appropriate — Because likelihood of plaintiff prevailing at outset was even under circumstances of case, multiplier of 1.5 is determined to be reasonable — Multiplier does not apply to paralegal time — Expert witness fees and prejudgment interest awarded from date case was settled
ELIZABETH TREVINO, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation authorized to transact business in Florida, Defendant. County Court, 10th Judicial Circuit in and for Hardee County. Case No. 252001SC000208. August 22, 2002. Marcus J. Ezelle, Judge. Counsel: David P. Carlton, Carlton & Carlton, Punta Gorda, for Plaintiff. Gerard Duignan.
FINAL JUDGMENT ON ATTORNEYS’ FEES
THIS MATTER came before the court for final hearing on the plaintiff’s motion to tax attorneys’ fees on January 10, 2002. Thereafter, the defendant moved to dismiss the entire case for lack of subject matter jurisdiction. After hearing the evidence presented, including the testimony of the parties’ expert witnesses, and considering the argument of counsel, this court hereby makes the following findings:
FINDINGS
1. Pursuant to stipulation of the parties, this court finds the plaintiff is entitled to attorneys’ fees under Section 627.428, Florida Statutes, and all cases construing the same.
2. Pursuant to stipulation of the parties, this court finds the hourly rates charged by plaintiff’s counsel are reasonable at $200.00 per hour for David P. Carlton, Esquire; $150.00 per hour for Mark B. Saine, Esquire; and $65.00 an hour for paralegal time.
3. Based on stipulation by the defendant, this court finds the plaintiff is entitled to all costs advanced by the plaintiff in prosecution of this action. The defendant has issued partial payment to the plaintiff for all costs incurred through the January 10, 2002, hearing.
4. This court accepts the plaintiff’s expert testimony as to the date the underlying lawsuit was settled and hereby finds that such occurred on November 7, 2001. After considering all relevant facts set forth in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), this court further accepts the plaintiff’s expert testimony as to the reasonable amount of time spent through November 7, 2001, and hereby finds that 2.6 hours is reasonable for David P. Carlton, Esquire; 13.4 hours is reasonable for Mark B. Saine, Esquire; and 9.3 hours is reasonable for paralegal time through that date.
5. Whether any time incurred by plaintiff’s counsel past November 7, 2001, should be awarded was the central issue in this case and turns on whether litigation on the applicability of a multiplier is an “entitlement” issue or an “amount” issue under the Florida Supreme Court’s decision in State Farm v. Palma, 629 So.2d 830 (Fla. 1993), and its progeny. The defendant maintained the plaintiff is not entitled to any time beyond the date of settlement, and that arguing for a multiplier increases the attorneys’ fees and is an amount issue. The plaintiff maintained that time beyond the date of settlement is compensable because there continued to be litigation over the issue of whether a multiplier was appropriate, and that applicability of a multiplier is an entitlement issue..
6. It is axiomatic that entitlement to a multiplier is the predicate to increase in amount of fee. Clearly, a multiplier (above 1.0) increases a fee, but it does not follow that because a fee is increased, the time spent by an attorney arguing for a multiplier is only an amount (of fee) issue. Defendant stipulated plaintiff is entitled to reasonable attorneys’ fees. However, such a concession is hollow when the reasonable fee the defendant insurer is willing to admit is subject to substantial diminishment or elimination by offset for the time plaintiff’s counsel must spend to argue multiplier applicability. The public policy purposes for the statutory attorney’s fee in Section 627.428, Florida Statutes, are sufficiently well known to avoid repetition. Where a multiplier is appropriate, a reasonable fee necessarily includes time arguing for the same or there results a net fee lower than the reasonable fee intended and approved by Section 627.428, Florida Statutes. This court agrees with the holding in State Farm Mutual Automobile Insurance Co. v. Thomas South in the Twelfth Judicial Circuit, DeSoto County, appeal case number 14-2001-CC-000-66, that Palma, id., does not answer the question whether the application of multiplier benefits is an issue of entitlement or amount.
7. Based on the foregoing and on plaintiff’s amended Exhibit “B”, the court hereby finds the following to be reasonable time incurred by plaintiff’s counsel through and including the hearing of January 10, 2002: 10.2 hours ($2,040.00) for David P. Carlton, Esquire; 26.7 hours ($4,005.00) for Mark B. Saine, Esquire; and 13.7 hours ($890.50) for paralegal time.
8. In accordance with the foregoing, the court finds the plaintiff is entitled to attorneys’ fees and paralegal fees through January 10, 2002, as follows:
David P. Carlton $2,040.00
Mark B. Saine4,005.00
Total attorneys’ fees$6,045.00
Paralegal 890.50
9. As the court finds the relevant market required a contingency fee multiplier in order for Ms. Trevino to obtain competent counsel, that plaintiff’s counsel was unable to mitigate the risk of nonpayment, and in considering the other factors this court is required to consider under Rowe and Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990), the court finds it appropriate to apply a contingency fee multiplier in this case.
10. Since the court finds a multiplier to be appropriate in this case, the next issue to consider is the plaintiff’s likelihood of success at the outset of the case. The defendant’s expert strenuously maintained there was a large likelihood of success at the outset and that no multiplier was applicable, or, alternatively, that a 1.0 multiplier should be applied. On the other hand, the plaintiff’s expert testified that under the particular facts and circumstances of the case at bar, success at the outset was less likely than not and opined that a 2.5 multiplier was appropriate. This court hereby finds the likelihood of the plaintiff prevailing at the outset to be even under the circumstances of this case. In turn, such a finding requires this court to consider application of a multiplier between 1.5 and 2.0. Based on the evidence before the court and the testimony presented, this court hereby determines that a multiplier of 1.50 is reasonable under the facts of this case and hereby awards the same.
11. This multiplier shall be applied only to attorneys’ times and not paralegal time. Accordingly, after applying the contingency fee multiplier, the court finds an enhanced fee of $9,958.00 ($6,045.00 attorneys’ time x 1.50 multiplier = $9,067.50 + $890.50 paralegal time) is due in favor of the plaintiff.
12. At and subsequent to the fee hearing on January 10, plaintiff’s assignment of benefits became a vigorously argued issue regarding defendant’s motion to dismiss for lack of jurisdiction and plaintiff’s response to the same. In evaluating the issues before the court, the assignment question has not been an issue in which the court placed much emphasis in evaluating risk for the purpose of determining applicability of a multiplier. The court finds that even though this is a question which each side had a very strongly argued position, it is a matter which could have been addressed far earlier in the case, and that even after it arose, it was subject to being resolved fairly promptly. Consequently, the court has assigned no risk to the assignment issue.
13. The court further finds the plaintiff’s expert, John Shannon, Esquire, is entitled to be compensated. There was no dispute raised by the defendant as to the reasonableness of his $300 hourly rate and 13.7 hours of time (10.7 before hearing and approximately 3 hours at hearing). Accordingly, the court hereby awards $4,110.00 to the plaintiff for expert witness fees and $18.36 in additional costs.
14. The court further finds that prejudgment interest is in order on the present award dating back to November 7, 2001, the date on which the case settled and was tantamount to a confession of judgment. Accordingly, the court finds the plaintiff is entitled to $208.94 (calculated at 11% through December 31, 2001, and at 9% thereafter) in prejudgment interest on attorney’s fees.
CONCLUSION
Based on the foregoing, it is hereby ORDERED AND ADJUDGED:
The plaintiff, ELIZABETH TREVINO, is to recover from the defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, $9,958.00 in attorneys’ fees, $4,110.00 in expert witness fees, $18.36 in additional costs, and $208.94 as prejudgment interest, for a total judgment of $14,295.30, all of which shall bear interest at the rate of 9% for the current year and thereafter at the prevailing rate per year as provided for by Florida Statute, for all of which let execution issue.
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