18 Fla. L. Weekly Supp. 1054a
Online Reference: FLWSUPP 1810JTOR
Insurance — Attorney’s fees — Prejudgment interest is awarded to medical provider despite six-year delay between determination of entitlement to attorney’s fees and entry of final judgment on fee and cost award where there are no equitable circumstances supporting denial of prejudgment interest
SOUTH FLORIDA INSTITUTE OF MEDICINE and MICRO-DIAGNOSTIC (a/a/o JUAN TORRES), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 03-1904 SP 25 (02). May 27, 2011. Lawrence D. King, Judge. Counsel: Richard Patiño, The Patiño Law Firm, Hialeah, for Plaintiff. Adam Shapiro, Office of the General Counsel, United Automobile Insurance Company, for Defendant.
FINAL JUDGMENT AWARDING ATTORNEY’S FEES AND COSTS
THIS CAUSE came to be heard on May 25, 2011, upon Plaintiff’s Motion for Attorney’s Fees and Costs. The Court having reviewed the Court file, heard testimony from expert witnesses for both parties, the stipulations of the parties, having reviewed the applicable case law, and having been otherwise apprised in the premises, hereby enters the following Final Judgment for Attorney’s Fees and Costs.
The Patiño Law Firm is entitled to reasonable statutory attorney’s fees and costs as counsel of record for the prevailing party Plaintiff in this Personal Injury Protection action. The attorney representation is based upon a contingency fee agreement. The Parties have agreed that for his services, attorney Richard Patiño, Esq., is entitled to $23,500.00 in attorney’s fee, and $202.00 in taxable costs.
The Court has reviewed the relevant factors in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985) and Standard Guaranty Insurance Company v. Quanstrom, 555 So. 2d 828 (Fla. 1990), in consideration of the reasonable fee to be awarded to Plaintiff’s counsel The Patiño Law Firm. Further, the Court is familiar with the work performed by attorney, Richard Patiño, Esq., and approves this negotiated settlement.
The Court finds that Plaintiff’s expert, Stuart Koenigsberg, Esq., expended a total of 8.5 hours in this case and is entitled to a reasonable hourly rate is $450.00 an hour based upon his skill and experience, for a total amount of $3,825.00.
The date of entitlement to attorney’s fees and costs is November 3, 2005, which date is not disputed in this case. In Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So. 2d 929 (Fla. 1996) [21 Fla. L. Weekly S141a], the Florida Supreme Court determined that an attorney’s fee arising from the successful prosecution of an underlying claim bears prejudgment interest from the date of entitlement, even though the amount of said fee has yet to be determined.
The Florida Supreme Court also places the burden on the party that owes the attorney’s fee and costs to take the settlement steps necessary to resolve same, or alternatively, to avoid the accrual of interest by tendering payment. Higley supra at 931. More recently, this rationale was recognized by the Honorable John T. Luzzo, sitting on the Appellate Panel of the 17th Judicial Circuit, Broward County, Florida in United Auto. Ins. Co. v. United Diagnostic & Rehab/Radiology & Neurology (a/a/o Fernando Ramirez), 17 Fla. L. Weekly Supp 772a (Fla. 17th Circ. App., 2010), which this Court finds persuasive.
The Plaintiff is entitled to pre-judgment interest in this action from the date of entitlement to the date of the hearing in the amount $9,223.92. However the Court must note that in this case, both parties waited an inordinate time to seek the final award of attorney’s fees and costs, otherwise necessitating the larger than usual prejudgment interest award herein. It was admitted at the hearing of this matter by both counsel of record that the failure of either party to set the attorney’s fee hearing for final disposition simply “slipped through the cracks” and was an oversight in proper calendar management. Respectfully this explanation does not warrant mitigation or limiting of the prejudgment interest in whole or part. This Court is legally bound to follow the precedential authority and mandates set forth in Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So. 2d 929 (Fla. 1996) [21 Fla. L. Weekly S141a], which necessitates the result herein.
Although not determinative of this matter, the Court notes that Rule 1.525, Fla. R. Civ. P. was created in part to eliminate the procedural delay sometimes experienced post-suit by the failure of a party to timely move for attorney fees and costs once entitlement has been established. These inordinate delays in final disposition and resolution of the case were the focus of the Civil Rules Committee of the Florida Bar when that Committee made recommendation to the Florida Supreme Court seeking approval of Rule 1.525. See Amendments to Fla. Rules of Civil Pro., 773 So. 2d 1098 (Fla. 2000) [25 Fla. L. Weekly S763a] (establishing 30 day time period to serve motion for attorney’s fees and costs after case disposition). See also Amerus Life Insurance Company v. Lait, 2 So. 3d 203 (Fla. 2009) [34 Fla. L. Weekly S49a]; Barco v. School Bd. of Pinellas Cty., 975 So. 2d 1116 (Fla. 2008) [33 Fla. L. Weekly S87b]; Saia Motor Freight Line, Inc. v. Reid, 930 So. 2d 598 (Fla. 2006) [31 Fla. L. Weekly S281a]; Diaz v. Bowen, 832 So. 2d 200 (Fla. 2d DCA 2002) [27 Fla. L. Weekly D2576a].
However Rule 1.525 is silent as to the time within which either party must affirmatively set the final hearing of the attorney’s fee matter on the Court’s docket once the motion for fees is timely served upon the opposing party. It most certainly would be more efficient and cost effective for the litigants to have a “deadline” within which to set all matters pertaining to the fee award and ultimate conclusion before the trial court, or otherwise be deemed to either have waived its right to a fee award, or in some manner limit that fee award based upon any inordinate delay in having the matter brought before the Court on motion calendar. This should also apply to prejudgment interest.
Be that as it may, this Court realizes that any significant delay in final disposition of the remaining attorney’s fee and cost dispute allows the prejudgment interest to mount and accrue without limitation, especially when there exists in the record no credible explanation why such a long period of time has passed between the entitlement determination, and the ultimate hearing and entry of final judgment on the prevailing party attorney’s fee and cost award.
Respectfully, after due consideration of the evidence presented it is clear that the equities should not be shifted to defeat the claimed prejudgment interest that has accrued during the past years in favor of Plaintiff, South Florida Institute of Medicine and Micro-Diagnostic while the matter lay dormant due to oversight or inordinate delay as described more specifically above. Moreover, the factual circumstances where prejudgment interest has been denied by a trial court based upon specific equitable considerations do not exist in the case sub judice. See generally State of Florida v. Family Bank of Hallandale, 623 So. 2d 474 (Fla. 1993). Prejudgment interest is considered an element of damages once those liquidated damages have been established. Broward County v. Finlayson, 555 So. 2d 1211 (Fla. 1990) citing Flack v. Graham, 461 So. 2d 82 (Fla. 1984) (interest is not recovered according to a rigid theory of compensation for money withheld, but is given in response to considerations of fairness, and denied when exaction would be inequitable).
WHEREFORE, IT IS ORDERED AND ADJUDGED that Final Judgment is hereby entered in favor of Plaintiff, South Florida Institute of Medicine and Micro-Diagnostic and against United Automobile Insurance Company as follows:
THE PATIÑO LAW FIRM, is entitled to the sum of $23,500 as reasonable attorney’s fees, and the sum of $202.00 for taxable costs, plus the amount of $9,223.92 for accrued interest at the rate of seven (7%) per annum from November 3, 2005, making the total due to THE PATIÑO LAW FIRM the sum of $32,925.92.
Stuart Koenigsberg, Esq. is entitled to an expert witness fee of $3,825.00.
Statutory interest shall accrue on the foregoing sums at the rate of six (6%) percent per annum until the Final Judgment amounts herein are paid in full for which let execution issue.
