9 Fla. L. Weekly Supp. 238a

Insurance — Uninsured motorist — Attorney’s fees — Proposal for settlement — Award of attorney’s fees to insureds of meager financial means whose proposal for settlement for UM claim for rear-end collision by drunken driver, which appeared to have great merit on both liability and damages from its inception, was rejected by well-financed and well-defended insurer bent on using hardball tactics — Contingency risk multipliers are still available for court-awarded fees under section 768.79 in the Fourth District — Hours enhanced with maximum contingency risk multiplier of 2.5 based on results attained, time limitations imposed by the circumstances, and insurer’s hardball tactics — Where insurer showed contumacious disregard for court’s discovery orders relative to attorney’s fees, insurer should forfeit right to contest application of 2.5 multiplier — Costs, expert witness fees, and prejudgment interest on fees and costs awarded

STACEY ROBINSON and ROBERT ROBINSON, her husband, Plaintiffs, vs. SIDNEY ALAN ZUCKERMAN and NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Defendants. Circuit Court, 15th Judicial Circuit in and for Palm Beach County. Case No. CL 97-6304 AE. February 7, 2002. John D. Wessel, Judge. Cousel: Diego C. Asencio, North Palm Beach. Howard W. Holden, West Palm Beach. Randy Brennan, Vero Beach. Hinda Klein, Hollywood.

Reversed in part by district court of appeal: 28 Fla. L. Weekly D1884b. DCA opinion reversed by Florida Supreme Court: 29 Fl. L. Wekly S629a. District court opinion on remand at 30 Fla. L. Weekly D2753c (on rehearing).

ORDER ON PLAINTIFFS’ MOTION FOR ATTORNEYS FEESAND COSTS AGAINST DEFENDANT NATIONWIDEMUTUAL FIRE INSURANCE COMPANY

THIS CAUSE came to be heard upon Plaintiffs’ motion for attorneys fees and costs against Defendant NATIONWIDE MUTUAL FIRE INSURANCE COMPANY. The Court having received the testimony of Rhonda Ellis, Bill Bone, Diego C. Asencio, Gary St. Arnauld (by deposition) and John P. Wiederhold; and having further considered Plaintiffs exhibits #’s 1 through 9 received in evidence without objection, Plaintiffs’ exhibit #10 received over objection, the entire file, and all other evidence at the attorney fee hearing of January 8, 2002, the court makes the following findings of fact and conclusions of law:FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. ENTITLEMENT TO ATTORNEYS FEES AND COSTS

This action was filed by STACEY and ROBERT ROBINSON (hereinafter THE ROBINSONS) on or about July 17, 1997. The action was against THE ROBINSON’s own UM insurer NATIONWIDE MUTUAL FIRE INSURANCE COMPANY (hereinafter NATIONWIDE) based on a rear-end drunk driving accident occurring August 30, 1994. Representation began on February 5, 1995 with original counsel, Ms. Ellis. NATIONWIDE learned that THE ROBINSONS had filed suit on August 21, 1997 despite the initial problems with service of process (See St. Arn. Dep. p. 283). On or about November 27, 1997, THE ROBINSONS served their proposal for settlement for $35,000 (See exhibit 19, St. Arn. Dep.)¹.

THE ROBINSONS were seeking fees notwithstanding NATIONWIDE’s defense that their proposal for settlement was three (3) days premature. THE ROBINSONS were proceeding on a theory of constructive service and on the basis that NATIONWIDE was informed fully of all facts by investigating their UM claim since 1994². When THE ROBINSONS sought post trial discovery to support their theories on the validity of their proposal for settlement, they faced extreme discovery obstruction by NATIONWIDE for over six (6) months. After many discovery skirmishes and two (2) NATIONWIDE discovery appeals, this court granted sanctions against NATIONWIDE by order dated December 10, 2001 striking all papers in opposition to the attorneys fees sought under the proposal for settlement ruling that “NATIONWIDE shall not be permitted to contest entitlement to fees under that proposal for settlement.” This order established entitlement for attorneys fees from November 27, 1997 to December 10, 2001. An attorney fee hearing was held January 8, 2002. The sole issues for the court’s determination at the attorney fee hearing were a) the market rate, b) the number of hours reasonably and necessarily spent from November 27, 1997 to December 10, 2001 and c) the multiplier.

THE ROBINSONS maintained that 557 hours had been reasonably and necessarily spent by Diego C. Asencio and that 75 hours had been reasonably and necessarily spent by Rhonda Ellis. NATIONWIDE did not contest the market rates of $250.00 per hour for attorney Asencio nor the rate of $200 per hour for Ms. Ellis. THE ROBINSONS sought a multiplier of 2.5 based on the obstinate recalcitrance of NATIONWIDE. NATIONWIDE asked that no multiplier be applied arguing that Mr. Asencio and Ms. Ellis had no “expectancy.”

In addition to the usual factors to be considered in any attorney fee hearing, the court was also required to consider the following six (6) factors set forth in Section 768.79, Florida Statutes (1997):

1. The then apparent merit or lack of merit in the claim.

2. The number and nature of offers made by the parties.

3. The closeness of questions of fact and law at issue.

4. Whether the person making the offer had unreasonably refused to furnish information necessary to evaluate the reasonableness of such offer.

5. Whether the suit was in the nature of a test case presenting questions of far-reaching importance affecting nonparties.

6. The amount of the additional delay cost and expense that the person making the offer reasonably would be expected to incur if the litigation should be prolonged.

2. APPARENT MERIT IN THE CLAIM

The evidence on liability and damages supported this as a very meritorious UM claim. At the time of the accident STACEY ROBINSON (hereinafter MS. ROBINSON) was a twenty-eight (28) year old mother of three (3) who earned her living as a paralegal with an annual salary of $28,000 working at the Boca Raton law firm of Osborne & Osborne. MS. ROBINSON was giving her disabled neighbor a ride from the mall in her family’s white station wagon when she was hit from behind by a drunken driver who then attempted to flee from the scene of the accident. MS. ROBINSON claimed she lost substantial income because she could only work part time from October 14, 1994 to June 13, 1997. MS. ROBINSON claimed she was unable to do full time work because of accident related injuries. MS. ROBINSONS’ treating physicians reported that she had sustained herniated disks in her low back, a permanent left knee problem and permanent ringing (tinnitus) in her right ear. NATIONWIDE claimed that MS. ROBINSON did not sustain any permanent injuries, nor incurr any substantial medical expenses, nor lose any substantial income from work. However, the jury awarded $90,852.65 in past medical expenses and loss of earning capacity, found permanent injury, and awarded $105,000 in future medical expenses (reduced to present value). The court finds that THE ROBINSONS’ UM claim from its very inception in 1995 appeared to have great merit on both liability and damages. The court finds that NATIONWIDE should have been able to grasp that merit.

3. NUMBER AND NATURE OF OFFERS

THE ROBINSONS presented the deposition testimony of Gary St. Arnauld as the NATIONWIDE person most knowledgeable about the handling of the UM claim. This deposition established that NATIONWIDE did not settle when it could have and should have. THE ROBINSONS’ counsel demanded the $100,000 UM policy limits on January 26,1996 in a demand package which included substantial medical documentation of the permanent injury of two herniated low back disks directly related to the drunk driving accident of August 30, 1994 (exhibits 12 and 29, St. Arn. Dep. pp. 216-217, 250-262). NATIONWIDE knew that there was evidence of herniated disks in the medical documentation and that MS. ROBINSON’s treating physician, Dr. Stewart Eidelson, was predicting back surgery costing $30,000 (See St. Arn. Dep. pp. 265-267). NATIONWIDE received THE ROBINSON’s demand letter and waived UM subrogation on February 13, 1996 (See exhibit 13, St. Arn. Dep. pp. 235).

On February 27, 1996, NATIONWIDE offered $5,000 (See exhibit 14, St. Arn. Dep. pp. 235). THE ROBINSONS supplied additional medical documentation October 7,1996 which showed a left knee problem as well as a ringing in the right ear related to the drunk driving accident (See exhibit 16B, St. Arn. Dep. pp. 247-249). The October 7, 1996 letter furnishing that documentation again demanded policy limits. On November 24, 1996 NATIONWIDE asked for more documentation and offered only $8,000 to settle (See exhibit 17, St. Arn. Dep. pp. 249-250). NATIONWIDE’s offer then dropped down to $5,000 on May 12,1997 (See exhibit 18, St. Arn. Dep. p. 274-275). Obviously, the case could not be settled pre-suit directly because of NATIONWIDE’s very stingy offers.

THE ROBINSONS served their proposal for settlement of $35,000 on or about November 27, 1997. Despite that NATIONWIDE had not received any new information since its offer of $5,000 on May 12, 1997, it responded with a counter-offer of $20,000 on December 24, 1997 (See exhibit 20, St. Arn. Dep. pp. 285-286, 296-297). Thereafter, NATIONWIDE’s offer did not increase between December of 1997 and November of 1999. In November of 1999 NATIONWIDE offered only $30,000. Extensive depositions were taken in November and December of 1999 all supporting THE ROBINSONS’ UM claim. THE ROBINSONS offered to settle for $100,000 on December 3, 1999 inclusive of attorneys, fees, costs and interest. NATIONWIDE still did not increase its offer from the $30,000 in November of 1999 until the Tuesday just before the trial began.

On the Tuesday before the trial began (May 15, 2001) NATIONWIDE’s top offer was $50,000 inclusive of costs. That May 15th offer was conditioned on THE ROBINSONS giving NATIONWIDE a complete release and dismissal with prejudice when NATIONWIDE knew THE ROBINSONS had spent $30,000 on costs. At that time THE ROBINSONS’ counsel reminded NATIONWIDE in writing that costs assessed against a UM insurer does not reduce the UM limits and that a UM insurer must pay costs in addition to its UM limits citing Foremost Ins. Co. v. Warmuth, 649 So.2d 939 (Fla. 4th DCA 1995). Moreover, NATIONWIDE’s attorney, Howard Holden, had been previously verbally advised on April 26, 2001 that NATIONWIDE would be obligated to pay costs in excess of its limits. This obligation to pay costs was totally ignored by NATIONWIDE. NATIONWIDE never asked for any evidence of the costs THE ROBINSONS incurred. NATIONWIDE never asked for an estimate of fees. Clearly, NATIONWIDE left THE ROBINSONS no choice but to proceed to trial.

4. CLOSENESS OF QUESTIONS OF FACT AND LAW

The court finds that there were no close questions of fact and law such as would have hindered settlement. This was a rear-end automobile accident case involving drunken driving. The evidence at trial strongly illustrates that this was not a close case. THE ROBINSONS presented seven (7) live witnesses at trial between 1:18 PM and 4:00 PM on May 22, 2001. Witnesses Joe Lang, Dan Rogan, Bonnie Rodan, Fred Gaines and Brenda Kane were all extremely supportive of the intoxication and outrageous conduct of MR. ZUCKERMAN in crashing into the rear of the station wagon and fleeing the scene of the accident. MS. ROBINSON’s family physician, Dr. Arvid Peterson, M.D., strongly supported that MS. ROBINSON did not have any significant pre-accident medical history. MS. ROBINSON’s mother, Audry Mize, likewise supported that there was no significant pre-accident medical history and that the accident caused a significant life style change in her daughter due to back pain.

During the Plaintiffs’ case at trial additional strong evidence was presented to the jury on intoxication and serious injury. Toxicologist Tom Carroll testified by deposition that MR. ZUCKERMAN had a .13 blood alcohol (whole blood) and was drunk. MR. ZUCKERMAN testified by video deposition that he was drinking before the accident but had no remorse. Dr. Albert Cohen testified that ZUCKERMAN had a .17 blood alcohol (serum blood) and was drunk. The testimony of MS. ROBINSON’s other family members (Robert Robinson, Carolyn Spence and Gail Spence) all supported that she was in good health before the accident and that she was significantly impaired after the accident. Dr. Weiss testified extensively about the future treatment MS. ROBINSON would need and its costs. MS. ROBINSON’s permanent injuries and need for future treatment was further well established by the video depositions of doctors Mate, Reuter, Eidelson, and Balkany. Dr. Theofolis testified by video deposition that persons like MS. ROBINSON, who have facet injury, are the most difficult to manage. Dr. Theofolis also gave the opinion that facet replacement was going to be available in the future. THE ROBINSONS’ economist, Dr. Pettingill, based upon the opinions of the treating physicians, projected future medical expenses in the range of $556,737 (without surgery) to $682,737 (with surgery).

All of the above evidence was either known or could have been known by NATIONWIDE prior to trial. Thus, NATIONWIDE chose to take an aggravated liability case with significant damages to trial. It should have been no shock that the jury returned verdicts awarding $243,952.65 in compensatory damages and $250,000.00 in punitive damages.

5. UNREASONABLE REFUSAL TO PROVIDE INFORMATION

The court finds that NATIONWIDE knew early on that the facts amply supported liability and damages. Moreover, NATIONWIDE could have chosen to obtain even more facts on liability and damages. There is no basis for NATIONWIDE to claim ignorance of the facts of this case. In fact, NATIONWIDE chose to hinder its own investigation and evaluation.

Mr. St. Arnauld admitted that NATIONWIDE had a medical authorization in its possession all along (See second page exhibit #3, St. Arn. Dep. pp. 88-89). The medical authorization was received on October 12, 1994 (See exhibit #25, St. Arn. Dep. pp. 125-128). The medical authorization also had a list of all the treating physicians (See last two pages of exhibit #3, St. Arn. Dep. pp. 97-98, 158). The medical authorization form did not have any expiration date on it (See second page of exhibit #3, St. Arn. Dep. pp. 120-121). However, there was nothing in the UM claim file to show that NATIONWIDE ever used the authorization even though it claimed to have the need of additional medical information (See St. Arn. Dep. pp. 90-91,119-120,122-123). Mr. St. Arnauld also admitted that NATIONWIDE had forms which contained data about lost wages as early as October 24, 1994 and that it could have used these to evaluate the lost wage component of the UM claim (See exhibits #’s 23 and 24, St. Arn. Dep. pp. 108-111).

NATIONWIDE had requested Dr. Stewart Eidelson, M.D. to give a permanency rating on March 2, 1995 (See exhibit 8, St. Arn. Dep. pp. 193-194). Dr. Eidelson’s office responded providing notes with the permanency rating on June 16, 1995 together with a balance on his billing of $4,145.00 (See exhibit 10, St. Arn. Dep.). There is no reason it could not have likewise obtained any other medical documentation which it needed to evaluate the UM claim.

NATIONWIDE knew from the very beginning that SIDNEY ZUCKERMAN (hereinafter MR. ZUCKERMAN) was a hit and run drunk driver since THE ROBINSONS explained all this to NATIONWIDE when they first called in the loss (See St. Arn. Dep. pp. 148). NATIONWIDE was moving in the direction of evaluating the UM exposure in this case early on. On September 14, 1994 NATIONWIDE’s adjuster asked to be provided with the bodily injury liability insurance limits of the auto driven by MR. ZUCKERMAN “as soon as possible” stating “it is imperative that I secure your BI liability limits” (See St. Arn. Dep. pp. 175-176). By September 24, 1994 NATIONWIDE already had that BI disclosure from Diaryland Insurance Company (See exhibit #26, St. Arn. Dep. pp. 130-132). Clearly, NATIONWIDE got an early start on the UM investigation.

Mr. St. Arnauld acknowledged on behalf of NATIONWIDE that the information on the amount of property damage could be helpful to the evaluation of the UM claim (See St. Arn. Dep. pp. 131-133). The damage to THE ROBINSONS’ car was inspected on September 8, 1994 (See St. Arn. Dep. pp. 134). The damages were estimated at $11,073.44 (See St. Arn. Dep. pp. 134-135). That meant the family station wagon was a total loss and that there was a very heavy impact (See St. Arn. Dep. p. 135-138). Even Mr. St. Arnauld had to admit it “was a significant impact” (See St. Arn. Dep. pp. 263). An electric scooter for the handicapped neighbor carried in the rear of THE ROBINSONS’ station wagon was also a total loss (See St. Arn. Dep. pp. 262-263). However, the only photos which NATIONWIDE took of the damage to the station wagon were very poor quality Polaroid pictures (See St. Arn. Dep. pp. 133, 140-141, 145-148). NATIONWIDE did not do a bio-mechanical investigation (See St. Arn. Dep. pp. 142-143). Also, NATIONWIDE did not take any pictures of the car driven by MR. ZUCKERMAN whatsoever (See St. Arn. Dep. pp. 138-139).

Mr. St. Arnauld admitted that MR. ZUCKERMAN’s drunk driving could be considered a special circumstance which might increase the general value of the UM case (See St. Arn. Dep. pp. 22-25). NATIONWIDE knew that the degree of MR. ZUCKERMAN’s inebriation would affect the value of the UM claim. However, there was no pre-suit investigation whatsoever as to that issue (See St. Arn. Dep. pp. 230-232). NATIONWIDE knew that it could obtain records concerning MR. ZUCKERMAN’s inebriation from the Delray Beach Police Department pursuant to a public records request but it did not obtain these records (See St. Arn. Dep. p. 269-270). Likewise NATIONWIDE did not obtain the toxicology report from the Palm Beach County Sheriffs Office Crime Lab (See St. Arn. Dep. pp. 272-273). NATIONWIDE’s adjusters were not even familiar with F.S. §624.128 which requires all insurers to waive the co-pay on DUI auto injury cases (See St. Arn. Dep. pp. 232).

Mr. St. Arnauld attempted to claim in his deposition that Ms. Ellis failed to provide requested information in 1996 and 1997. Specifically, Mr. St. Arnauld testified NATIONWIDE’s adjuster made six (6) written inquires and eight (8) by phone (See St. Arn. Dep. pp. 285). However, NATIONWIDE refused to provide access to the adjuster claim notes which allegedly supported the eight (8) phone calls and their content. Mr. St. Arnauld could also not explain why NATIONWIDE’s adjuster did not simply use the medical authorization furnished on October 12, 1994. NATIONWIDE did not request additional time to respond to the proposal for settle but instead made its own counter-offer within the thirty (30) days of THE ROBINSONS’ proposal (See exhibit 20, St. Arn. Dep. pp. 285-286, 296-297). The court finds that even if Ms. Ellis had failed to provide some information, the documentation which was furnished provided more than a sufficient basis for NATIONWIDE to have properly evaluated this case as one which it could have and should have settled in early 1997.

6. WHETHER THE SUIT WAS IN THE NATURE OF A TEST CASE

There was a novel issue in this case: whether a UM insurer could be held liable for punitive damages based on the vicarious liability of the owner of an automobile. In Travelers Ins. Co. v. Wilson, 261 So.2d 545 (Fla. 4th DCA 1972) a Defendant was sought to be held liable vicariously for punitive damages solely on the basis of his ownership of the insured motor vehicle and the gross negligence of the driver. The narrow issue determined on appeal in Wilson was whether, under those circumstances, there could be liability insurance coverage for punitive damages. The court held that there could be liability coverage for punitive damages under those circumstances. THE ROBINSONS were attempting to apply the Wilson holding to their UM case as well as seeking extension, modification or reversal of existing law which prohibited direct UM coverage for punitive damages. Mr. Wiederhold claimed there was substantial time devoted to this issue by Mr. Asencio. However, the trial court dismissed that claim on March 15, 1999 and THE ROBINSONS did not seek to have that matter addressed again until June 6, 2001. Moreover, the issue of UM coverage for punitive damages did not contribute in any way to NATIONWIDE’s failure to settle the case. If anything, the possibility of UM coverage for punitive damages should have encouraged NATIONWIDE even more to settle.

7. ADDITIONAL DELAY AND EXPENSE

Clearly, settling this case in early 1997 would have saved enormous expense in costs and fees. The vast majority of the attorney time was spent after 1997. The vast majority of the physician depositions did not take place until 1999. Just prior to the trial in 2001, there was an additional surge of discovery. The trial itself greatly increased the time and costs expended to obtain the ultimate recovery. After the verdicts, NATIONWIDE vehemently opposed the post trial relief sought by THE ROBINSONS. Even Mr. Wiederhold commented that a large part of the time and costs were incurred following the jury verdicts for THE ROBINSONS. While NATIONWIDE was not legally required to yield an inch to THE ROBINSONS, it is now required to face the consequences of putting up that kind of militant resistance.

8. TIME AND LABOR

The court finds that the 557 hours spent by Mr. Asencio up and until the time this court found entitlement on December 10, 2001 were all reasonable and necessary. The court finds that the 75 hours spent by Ms. Ellis up and until the time Mr. Asencio took over from her (due to her pregnancy) were likewise all reasonable and necessary. Comparing the total Plaintiffs’ time to the defense time, the time spent by Mr. Asencio and Ms. Ellis is exceedingly reasonable. The defense spent 1,757 hours on behalf of NATIONWIDE. Even discounting all time spent on the appeals, NATIONWIDE spent 1,400 hours in defense of this case of clear liability and damages.

The court is not unmindful of the testimony of defense expert Mr. Wiederhold that there was time devoted to drunk driving issues and UM coverage for punitive damages. The court finds, however, that this time was still reasonable and necessary time. NATIONWIDE also contributed to the time spent by failing to admit liability until just prior to trial and by raising objections and conducting cross examination of the witnesses who supported drunk driving liability. NATIONWIDE argued at trial that Mr. Asencio’s tactics were designed to obtain a larger compensatory damages award. It cannot now argue that this time was not well spent.

9. NOVELTY, COMPLEXITY AND REQUIRED SKILL

As previously noted, this case was somewhat novel. In addition to the issue of UM coverage for punitive damages, there were also novel evidentiary issues. NATIONWIDE argued that the jury should not be permitted to know that it was THE ROBINSONS’ UM insurer. NATIONWIDE also argued that the jury should hear extensive testimony on the employment benefits available to MS. ROBINSON. These issues were hotly contested at trial. The Florida Supreme Court had yet to issue any definitive decisions on these questions prior to trial³. These issues made the case more complex and required greater skill on the part of Mr. Asencio.

10. MARKET RATE FOR FEES IN THE COMMUNITY

The court finds that the market rates 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 THE ROBINSONS’ counsel range between $200 per hour to $300 per hour. NATIONWIDE did not contest the $250.00 per hour sought by Mr. Asencio nor the $200 per hour sought by Ms. Ellis. The court finds these rates reasonable.

11. AMOUNTS INVOLVED AND RESULTS OBTAINED

One of the challenges faced by THE ROBINSONS in this case was that their recovery was limited to the $100,000 UM policy limits. This made it a difficult case for any attorney to handle since it made no sense to expend $45,000 in costs in order to only recover $40,000 in attorneys fees based on a 40% contingency fee. Counsel for THE ROBINSONS were cognizant from the outset that NATIONWIDE could make the price of going forward too great. Thus, counsel early on considered use of F.S. §768.79 to obtain fees and the application of a contingency risk multiplier to enhance those fees. In November of 1999 NATIONWIDE advised THE ROBINSONS’ counsel that it would oppose any fees claiming their proposal for settlement was served three (3) days premature. Mr. Asencio held steadfast to the prosecution of his clients’ case despite the possibility of a comparatively meager fee. Additionally, Mr. Asencio resourcefully sought to expand the UM coverage beyond the policy limits relying on case law that allowed for UM coverage of taxable costs beyond the policy limits. See Foremost Ins. Co. v. Warmuth, 649 So.2d 939 (Fla. 4th DCA 1995). This approach helped to offset the enormous expense Mr. Asencio encountered in having to take THE ROBINSONS case to trial. The results were very good. THE ROBINSONS’ attorneys should have their fees enhanced for good work done to bring about the good result.

12. TIME LIMITATIONS IMPOSED BY THE CIRCUMSTANCES

The court finds that this case was very time consuming. The jury trial took up an entire week of this court’s busy trial schedule. The 557 hours is a large amount of time to devote to any case with a $100,000 limit. Despite the time demands of this case, Mr. Asencio diligently prosecuted this case. This is particularly true following the jury verdicts. Mr. Asencio timely filed post trial motions and sought to have them promptly set for hearing. NATIONWIDE’s numerous attorneys opposed virtually every post trial motion filed by THE ROBINSONS and often claimed they were not available for the hearings Mr. Asencio noticed. Nevertheless, Mr. Asencio persevered. The fees should be enhanced due to the time limitations imposed.

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

THE ROBINSONS had a contingent fee contract with Mr. Asencio. Mr. Asencio’s contract allowed for the larger of either a percentage or the court awarded fee. Likewise, the contract of Ms. Ellis allowed for a percentage or a court awarded fee, whichever was larger. Such contracts properly allow the court to consider a court awarded fee and a multiplier. Wilson v. Wasser, 562 So.2d 339 (Fla. 1990). Therefore, the application of a contingency risk multiplier to the Loadstar is within the sound discretion of the court. The court is not unmindful of the testimony of Mr. Wiederhold that THE ROBINSONS did not have a true contingency contract because there was no “expectancy of a multiplier.” The court understands this defense theory. The theory appears to be based upon the case of Allstate v. Sarkis, 26 Fla. L. Weekly D2870 (Fla. 5th DCA 2001) and the dissenting opinion in Pirelli Armstrong v. Jensen, 752 So.2d 1275 (Fla. 2d DCA 2000). However, Sarkis certified conflict on that issue with Collins v. Wilkins, 664 So.2d 14 (Fla. 4th DCA 1995) which is the law which this trial court is required to follow. In the 4th District contingency risk multipliers are still available on court awarded fees under F.S. §768.79. Moreover, as set forth above, counsel for THE ROBINSONS were fully depending on the contingency risk multiplier because this case could not be handled economically without a court awarded fee and a contingency risk multiplier.

The court finds that it would have been difficult if not impossible to get competent legal representation on a hotly contested UM case like this one without the use of a contingency contract and an adequate multiplier. Attorneys of skill and reputation similar to that of Mr. Asencio will not accept hotly contested UM cases and go to trial without the possibility of a court awarded fee and an adequate contingency risk multiplier. The court finds that attorneys of skill and reputation will not choose to pursue such cases when all they can obtain is a percentage of the recovery. Moreover, without a contingency fee multiplier, such cases are highly undesirable. If the UM insurer makes up its mind to take a meritorious case like this one to trial, the risk of losing time and money will always be present when the maximum recovery is capped at the policy limits. This is exactly the type of case that requires a multiplier.

14. CONTINGENCY RISK MULTIPLIER

THE ROBINSONS’ expert witness, Mr. Bone, testified that the likelihood of success in this case was good at the outset. However, the case was difficult to handle because THE ROBINSONS could not afford to pay an hourly rate nor advance any costs. THE ROBINSONS counsel would be required to advance all of the costs of the litigation and take on the full risk of non-recovery of those costs and fees. There was no way to mitigate that risk since NATIONWIDE would not settle. A percentage of the total recovery was simply insufficient given the $100,000 policy limits. Given all of the information known by NATIONWIDE early on, its conduct in failing to settle was nothing short of stonewalling. All NATIONWIDE settlement offers fell far short of what would be reasonable for what it knew or should have known. Although NATIONWIDE knew early on that this was a case of liability and damages, it made it clear to THE ROBINSONS that they would have to take this case to trial to obtain its full value. When litigants of meager financial means encounter a well financed and well defended insurer bent on using hard ball litigation tactics, the maximum contingency risk should be applied to enhance the attorneys fees.

In State Farm Mut. Auto. Ins. Co. v. Moore, 597 So.2d 805 (Fla. 2d DCA 1992) the court found the maximum multiplier of 2.5 was justified based in part on the obstinate recalcitrance of a UM insurer that refused to admit coverage over a period exceeding two and one-half years inviting protracted litigation. The Court in Moore also based its decision on the fact that the plaintiff had no assets to pay fees. In this case THE ROBINSONS did not have the funds to pay for an attorney. Similar to Moore, NATIONWIDE invited protracted litigation by making low ball offers and stonewalling negligence. This was a case where NATIONWIDE could have admitted negligence when it filed its answer to THE ROBINSONS’ complaint. NATIONWIDE chose to take this case to the mat. It fought THE ROBINSONS on each and every issue both on damages and on liability for years. This was a case which was difficult from start to finish specifically because of the way NATIONWIDE chose to defend the case. Accordingly, the maximum multiplier of 2.5 should be applied.

Additionally, NATIONWIDE continued to show contumacious disregard for this court’s discovery orders. The court awarded costs and fees against NATIONWIDE for what took place at the Gary St. Arnauld deposition on October 9, 2001. Thereafter the court entered sanctions when NATIONWIDE would not comply with this court’s discovery order of October 29, 2001. Despite these two orders, NATIONWIDE continued to obstruct access to discovery when Mr. St. Arnauld’s deposition resumed on December 13, 2001. Had Mr. St. Arnauld prepared well for the deposition and given direct answers, Mr. Asencio would most likely have been even more successful in his attorney fee presentation. Accordingly, this court finds that NATIONWIDE should forfeit the right to contest the application of a 2.5 multiplier pursuant to THE ROBINSONS’ most recent motion for sanctions heard on January 7, 2002.

15. REASONABLE COSTS

The court finds that NATIONWIDE presented no substantial opposition to the evidence presented on THE ROBINSONS’ reasonable costs sought pursuant to F.S. §768.79, F.S. §§92.231, 57.041, 57.71 and Rule 1.390(c), Fla. R. Civ. Pro. Thus, THE ROBINSONS are entitled to an award of reasonable costs in the amount of $40,864.33 for Diego C. Asencio and $4,285.88 for Rhonda Ellis.

16. 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); Accord Mangel v. Bob Dance Dodge, Inc., 739 So.2d 720 (Fla. 5th DCA 1999). Mr. Bone testified without contradiction that he expended 24 hours for preparation and trial testimony as a fee expert. Mr. Bone also testified without contradiction that his hourly rate for such expert witness service is $300.00 per hour and that Mr. Asencio had agreed to pay him that fee. Accordingly, the court finds that THE ROBINSONS are entitled to tax Mr. Bone’s expert witness fee in the amount of $7,200.00.

17. PREJUDGMENT INTEREST ON ATTORNEY FEES AND COSTS

THE ROBINSONS are entitled to prejudgment interest on attorney fees and costs from the date of entitlement to fees and costs. Quality Engineering Installation v. Higley South Inc, 670 So. 2d 929 (Fla. 1996). The case was resolved as to entitlement to attorneys fees and costs by this Court’s order of December 10, 2001. Thus, prejudgment interest on attorneys fees and costs accrues interest at the rate of 11 % from that date.

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

A. Attorney time of 557 for Mr. Asencio (number of hours reasonably and necessarily expended) X $250.00 per hour (reasonable hourly rate) = $139,250.00 (Loadstar) X 2.5 (Contingency Risk Multiplier) = $348,125.00 total attorneys fees.

B. Attorney time of 75 for Ms. Ellis (number of hours reasonably and necessarily expended) X $200.00 per hour (reasonable hourly rate) = $15,000.00 (Loadstar) X 2.5 (Contingency Risk Multiplier) = $37,500.00 total attorneys fees.

C. Total costs of $40,664.33 for Mr. Asencio. Total costs of $4,285.88 for Ms. Ellis.

E. Expert witness fees of $7,200.00 for Mr. Bone.

Accordingly, total fees and costs of $430,575.21 shall accrue interest from December 10, 2001 to December 31, 2001 at the rate of 11 % (per diem of $129.76 for 21 days = $2,724.96) and 18

January 1, 2002 through February 7`”, 2002 at the rate of 9% (per diem of $106.18 for 38 days = $4,034.84); total interest of $6,759.80. No prejudgment interest shall be allowed for the expert witness fees since entitlement was not yet established. Judgement shall be entered on combined fees, costs, interest and expert witness fees with appropriate post judgment interest in accordance with F.S. §55.03.

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¹The exact date of mailing was not known because NATIONWIDE failed or

refused to produce the original envelope as requested by Plaintiffs.

²NATIONWIDE relied upon Grin v. Coldwell Banker, 788 So.2d 262 (Fla. 4th DCA 2000) and THE ROBINSONS relied upon Kuvin v. Keller Ladder,, Inc., 26 Fla. L. Weekly D2356 (Fla. 3d DCA Oct. 3, 2001) which distinguishes premature service of a proposal for settlement between a defendant who is in no position to respond because service of process is his first notice of the claim from a defendant who is fully involved and has knowledge of all facts.

³Following trial the Florida Supreme Court did issue opinions on both these issues. See Lamz v. GEICO, 26 Fla. L. Weekly 5519 (Fla. Aug. 16, 2001) and Sheffield v. Superior Ins. Co., 26 Fla. L. Weekly 5706 (Fla. Oct. 25, 2001).

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