9 Fla. L. Weekly Supp. 203a
Insurance — Personal injury protection — Attorney’s fees — No abuse of discretion in amount of attorney’s fees awarded to attorney for medical provider who prevailed in claim against insurer for reduction of bill and failure to pay in timely manner — No abuse of discretion in decision to apply 2.0 contingency risk multiplier
SUPERIOR INSURANCE COMPANY, Appellant, v. PINNACLE MEDICAL, INC. d/b/a ISO DATA DIAGNOSTICS, attorney in fact and assignee for YVES JOSEPH, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1-00-13. L.C. Case No. SCO98-8081. October 24, 2001. Appeal from the County Court, Orange County, Jerry C. Brewer, Judge. Counsel: Michael R. D’Lugo, Wicker, Smith, Tutan, O’Hara, McCoy, Graham & Ford, P.A., for Appellant. Peter A. Shapiro, Law Offices of Peter A. Shapiro, for Appellee.
(BEFORE MILLER, RUSSELL, and EVANS, JJ.)
FINAL ORDER AND OPINION
(PER CURIAM.) Appellant, Superior Insurance Company (“Superior”), seeks review of a judgment for attorney’s fees rendered by the trial court in favor of Appellee, Pinnacle Medical, Inc. d/b/a ISO Data Diagnostics (“Pinnacle”). This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(A). This Court dispenses with oral argument pursuant to Florida Rule of Appellate Procedure 9.320. For the reasons expressed below, the judgment is affirmed.
On October 6, 1998, Yves Joseph (“Joseph”), was injured in an automobile accident. At the time of the accident, Joseph was insured by Superior pursuant to an automobile insurance policy which provided personal injury protection benefits. Joseph received medical treatment from Pinnacle on October 28, 1998, for injuries related to the automobile accident. Joseph executed an assignment of his personal injury protection benefits in favor of Pinnacle.
Pinnacle submitted a bill to Superior for the medical services it rendered to Joseph. Superior paid the bill after reducing the amount by $74.53. On December 7, 1998, Pinnacle filed a Complaint for Damages against Superior for reducing the bill and for failing to pay in a timely manner. The parties executed a settlement agreement and a Judgment Against Defendant was rendered on January 24, 2000.
On December 8, 1999, Pinnacle filed a Motion for Attorney’s Fees and Costs. On February 14, 2000, a hearing was held on Pinnacle’s motion. On February 15, 2000, the trial court entered an Order on Motion for Attorney’s Fees and Costs in the amount of $78,633.00 for attorney’s fees and $949.24 in costs. A Judgment Against Defendant for Costs and a Judgment Against Defendant for Attorney’s Fees were rendered on February 15, 2000.
On February 21, 2000, Superior filed a Notice of Appeal seeking review of the trial court’s award of attorney’s fees and costs.1 Superior filed its Initial Brief on June 23, 2000. An Answer Brief was filed on August 2, 2000. No Reply Brief was filed.
Superior seeks review of the trial court’s determination of the amount of attorney’s fees due to Pinnacle. “The determination of attorney’s fees is a ruling which falls within the sound discretion of the trial court and must not be disturbed on appeal absent a showing of a clear abuse of discretion.” Baker v. Falcon, 788 So. 2d 1104, 1106 (Fla. 5th DCA 2001); see also DiStefano Construction, Inc. v. Fidelity and Deposit Company of Maryland, 597 So. 2d 248 (Fla. 1992); and Elliot v. Pallotti, 654 So. 2d 1300 (Fla. 5th DCA 1995).
Superior argues that the attorney’s fees award in this case was “shockingly high” and arbitrary. Superior claims that the trial court abused its discretion in awarding $78,633.00 in attorney’s fees on a $74.53 claim. Superior argues that the trial court failed to consider the appropriate factors in determining a reasonable hourly rate, the amount of hours worked, and the application of a contingency fee multiplier.
Pinnacle argues that the trial court’s decision was not arbitrary or an abuse of discretion. Pinnacle argues that there was sufficient evidence to support the trial court’s findings regarding counsel’s hourly rate, the number of hours worked, and the amount of the contingency fee multiplier.
Prior to the attorney’s fee hearing, the parties agreed to waive the appearance of experts. Superior was required to raise any objections to the time and costs claimed by Pinnacle’s counsel prior to the hearing. Superior made two objections to the attorney’s fees claimed: first, it claimed that counsel’s time was not kept contemporaneously; and second, Superior claimed that the amount of time spent was unreasonable. No specific objections to any time entries were made.
At the hearing on the Motion to Tax Attorney’s Fees and Costs, Pinnacle introduced the following documents as exhibits: 1) Contract of Representation; 2) Waiver of Fee Expert; 3) Affidavit of Attorney Time; 4) Correspondence regarding objections to Affidavit of Attorney Time; 5) Response to Defendant’s Objections/Comments on Costs and Fees; 6) Plaintiff’s Request for Admission to Defendant and Response to Plaintiff’s Request for Admission; and 7) Order from Judes v. Infinity Insurance Company in which the trial court awarded Pinnacle’s counsel a $300.00 hourly fee. Superior did not introduce any documents into evidence.
In determining a reasonable attorney’s fee, the trial court was required to consider the following criteria: 1) the time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal services properly; 2) the likelihood that acceptance of this case would preclude other employment by Pinnacle’s attorney; 3) the fee customarily charged in this area; 4) the amount involved and the results obtained; 5) the time limitations imposed by the client or the circumstances; 6) the nature and length of the professional relationship with the client; 7) the experience, reputation, and ability of Pinnacle’s counsel; and 8) whether the fee was fixed or contingent. See Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145, 1150 (Fla. 1985).
Pinnacle’s counsel, Peter Shapiro, Esquire, was duly sworn and provided testimony regarding the appropriate hourly rate and the number of hours expended in this case. Mr. Shapiro requested an hourly rate of $300.00 for himself and $85.00 for his paralegal. He testified that this was a novel case that required a tremendous amount of labor. The case involved a small reduction in a bill based upon the usual and customary charges for this area as calculated by a medical database utilized by Superior. There were several hearings and depositions, including depositions of individuals in Utah and Alabama. Mr. Shapiro testified that the results obtained were excellent in that Pinnacle received payment for the amount of the reduction plus interest from Superior. He also testified that he had an ongoing contingent fee relationship with his client and that this case did preclude him from accepting other employment.
Mr. Shapiro stated that he graduated first in his class from Virginia Tech and the University of Florida Law School in 1988 and 1992, respectively. He has always practiced personal injury law and has participated in over thirty jury trials. He believes his reputation is excellent. Mr. Shapiro noted that the trial court previously awarded him a $300.00 hourly rate in another case and that attorneys’ fee awards in the surrounding areas support such a rate. Mr. Shapiro also testified that many local firms are charging hourly rates of $250.00 to $300.00 per hour. He testified that $85.00 per hour was the going rate for a paralegal.
With respect to the time expended, Mr. Shapiro testified that he believed the amount of time to be reasonable and that he is conservative and efficient when keeping time. He testified that this case required a great deal of time because of issues related to the data base system used by Superior to justify reducing Pinnacle’s bill. Mr. Shapiro noted that several depositions were taken and that the case was not settled until one or two days before trial. In response, Superior argued that its counsel only billed seventy-eight hours of attorney time and, therefore, the 151.9 hours claimed by Mr. Shapiro was unreasonable on its face.
Mr. Shapiro testified that he keeps his time contemporaneously. He keeps the time on his computer system, updating it as he goes along and he also keeps handwritten notes and updates his time from those where it is appropriate. Superior claimed that Mr. Shapiro did not keep his time contemporaneously but failed to expand on that argument at the hearing or offer any additional evidence or testimony to support its claim.
Based upon the testimony and documents presented at the attorney’s fee hearing, the trial court’s award of $250.00 per hour for 151.9 hours of work for Mr. Shapiro and $85.00 per hour for 8.2 hours of work for Mr. Shapiro’s paralegal was not a clear abuse of discretion.
Mr. Shapiro also testified that this case satisfied the three factors enumerated in Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990), thereby entitling him to a contingency fee multiplier. Specifically, Mr. Shapiro testified that the relevant market requires the contingency fee multiplier to ensure clients are able to obtain competent counsel; that he was unable to mitigate the risk of nonpayment in this case; and that several of the Rowe factors applied in this case. Mr. Shapiro testified that a contingency fee multiplier of 2.25 was appropriate because the odds were greatly in favor of Superior at the outset of this case. Mr. Shapiro noted that this was a novel and complex issue involving the use of a data base system to justify a $74.53 reduction in an $885.00 bill. Mr. Shapiro also distinguished other types of personal injury protection benefits cases in which a contingency fee multiplier might not be appropriate, or where it might be much less.
This Court finds that, based upon the record presented, the trial court’s decision to apply a contingency fee multiplier of 2.0 was not a clear abuse of discretion.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Judgment Against Defendant for Attorney’s Fees is AFFIRMED. (MILLER, RUSSELL, and EVANS, JJ., concur.)
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1Superior has abandoned its claim that the costs awarded were improper. Superior has also abandoned its claim that Pinnacle was not entitled to attorney’s fees. Thus, the only remaining issue on appeal is the amount of attorney’s fees awarded to Pinnacle.
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