9 Fla. L. Weekly Supp. 640b
Insurance — Personal injury protection — Attorney’s fees — Reasonable number of hours expended and reasonable hourly rate determined — Contingency risk multiplier — Where relevant market requires contingency risk multiplier to obtain competent counsel in claim for PIP benefits, attorney was not able to mitigate risk of nonpayment in any way, and success was even at time case was initiated, multiplier of 2 is warranted — Costs — Fee awarded to expert witness
TITUSVILLE TOTAL HEALTHCARE AS ASSIGNEE OF CAROL RABAULT, Plaintiff, vs. ALLSTATE INSURANCE COMPANY, Defendant(s). County Court, 18th Judicial Circuit in and for Brevard County. Case No. 05-2001-SC-063360. July 29, 2002. George B. Turner, Judge. Counsel: Kimberly P. Simoes, Susan W. Tolbert, P.L., Daytona Beach. Joseph G. Murasko, West Palm Beach.
FINAL JUDGMENT FOR ATTORNEY FEES AND COSTS
THIS MATTER comes on before the Court on Plaintiff, TITUSVILLE TOTAL HEALTHCARE’s Motion for Attorney Fees and Costs and after hearing argument of counsel and evidence presented and being otherwise fully advised in the premises, the court finds:
1. This case arises out of a claim for Personal Injury Protection benefits.
2. The issues involved in this litigation included the Plaintiff’s claim that Defendant failed to make proper payment of Personal Injury Protection benefits and the defenses raised thereto, including, ALLSTATE INSURANCE COMPANY’S, attempts to disqualify Plaintiffs counsel from the representation of TITUSVILLE TOTAL HEALTHCARE.
3. ALLSTATE INSURANCE COMPANY ultimately declared the Motion to Disqualify to be moot and did not proceed with the scheduled evidentiary hearing in that regard.
4. On May 30, 2001, ALLSTATE INSURANCE COMPANY confessed judgment by agreeing to make full payment of all Personal Injury Protection benefits due.
5. ALLSTATE INSURANCE COMPANY did not thereafter admit Plaintiff’s entitlement to attorney fees and Plaintiff continued to incur additional time and expense on the issue of entitlement to attorney fees after confession of judgment.
6. A hearing regarding entitlement to attorney fees and the amount of attorney fees and costs was held on June 27, 2002. Plaintiff presented the expert testimony of Robert Moletteire, Esq. and Defendant presented the testimony of Jack Carstenson, Esq. Both witnesses were credible in their testimony.
7. A hearing regarding entitlement to appellate attorney fees was held on July 11, 2002. The Honorable John Dean Moxley ordered that the Plaintiff was entitled to a reasonable attorneys fee pursuant to Chapter 57.105 for the hours expended by Plaintiff’s counsel on the Petition for Writ of Certiorari. The Circuit Court remanded the matter to this Court for a determination of the amount of attorney fees to be awarded to Plaintiff.
8. In conformity with and consideration of all factors enumerated both in the Florida Bar Code of Ethics 4-1.5, and in the cases of Florida Patients Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985) and Standard Guaranty Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990), this court finds:
a. The reasonable number of hours for attorney time expended, excluding time spent on the Petition for Writ of Certiorari and disqualification, was 23 hours and the reasonable hourly rate for work performed for attorney time is $250.00 per hour, for a total for attorney time of $5750.00.
b. The reasonable number of hours for attorney time expended on the Petition for Writ of Certiorari, was 19 hours and the reasonable hourly rate for work performed for attorney time is $250.00 per hour, for a total for attorney time of $4750.00.
c. The reasonable number of hours for attorney time expended on the disqualification issue was 152.60 hours and the reasonable hourly rate for work performed for attorney time is $250.00 per hour, for a total for attorney time of $38,150.00.
9. Accordingly, this court finds that the total reasonable hourly rate times the reasonable hours equals $48650.00 which represents the “lodestar” for the attorneys’ fees to be awarded to Plaintiff in this matter.
10. This court hereby finds that a contingency fee agreement existed between Plaintiff’s attorneys and TITUSVILLE TOTAL HEALTHCARE in this matter.
11. This court hereby finds that this was a claim for Personal Injury Protection Benefits and the relevant market requires a contingency fee multiplier to obtain competent counsel.
12. This court hereby finds the attorney was not able to mitigate the risk of nonpayment in any way.
13. This court hereby finds success was even at the time the case was initiated and that a multiplier of 2 is warranted based on the elements set forth in the cases of Florida Patients Compensation Fund v. Rowe and Standard Guaranty Ins. Co. v. Quanstrom.
14. This court considered all testimony, exhibits and the time sheets of Plaintiff’s counsel in making its findings and ruling.
15. Plaintiff’s expert, Robert Moletteire, Esq. was necessary to render an opinion relating to the reasonable number of hours and a reasonable hourly rate. Robert Moletteire, Esq. expended time reviewing file materials, preparing for and providing expert testimony and was required to take time away from his practice and is entitled to a fee of $1750.00.
It is hereby Ordered and Adjudged that
16. This court awards attorney fees in the total sum of 97,300.00.
17. Taxable costs in this action payable by the Defendant, ALLSTATE INSURANCE COMPANY, to TITUSVILLE TOTAL HEALTHCARE are in the sum of $1807.34 in addition to the expert fee of $1750.00 for a total of $3557.34.
18. The total amount of costs and fees payable by the Defendant ALLSTATE INSURANCE COMPANY, to TITUSVILLE TOTAL HEALTHCARE, is $100,857.34 that shall bear interest at the legal rate of 9% per year for which sum let execution issue.
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