26 Fla. L. Weekly Supp. 589c
Online Reference: FLWSUPP 2607ASTOInsurance — Personal injury protection — Attorney’s fees — Amount — Contingency risk multiplier — Where evidence indicates that medical provider had no difficulty in obtaining competent counsel and does not support contention that relevant market requires contingency risk multiplier in order to obtain competent counsel, competent substantial evidence does not support award of multiplier
BETTER CARE MEDICAL REHAB INC a/a/o Clarence Astorga, Plaintiff, v. INFINITY AUTO INS CO, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 2011-020431-CC-25. Section CG 02. August 3, 2018. Gina Beovides, Judge. Counsel: Peter G. DePrimo, Katiana B. Fleites and Armando D. Fleites, DePrimo Fleites Law, Miami; and Amado Alan Alvarez, The Alvarez Trial Law Firm, Miami, for Plaintiff. Ana M. Melmer and Jaclyn M. Gil, Law Offices of Deborah N. Perez and Associates, Doral, for Defendant.
FINAL JUDGMENT AWARDING ATTORNEY’S FEESAND COSTS IN FAVOR OF PALINTIFF
THIS CAUSE having come before the Court on February 27, 2018 and May 2, 2018, on Plaintiff’s Motion for Attorney’s Fees and Costs, and this court having heard argument of counsel for the parties, sworn testimony from all attorneys from Plaintiff, sworn testimony from Stuart L. Koenigsberg, Esq., Kenneth Schur, Deborah Perez, Esq., and expert testimony from Carlos A. Lopez, Jr. and Dawn Jayma, Esq, and being otherwise fully advised in the premises, here by states the following:Background
This action was brought by the Plaintiff, through an assignment of benefits provided to it by the insured, for a breach of contract claim against the Defendant (insurer) for Personal Injury Protection [“PIP”] benefits.
Plaintiff’s counsel entered into a global retainer agreement with the owner of Better Care Medical Rehabilitation, Inc. (“Better Care”), on February 18, 2009. This retainer agreement was on a “contingency fee basis” with “the Insurance Company [being] solely responsible to pay for client’s attorney’s fees when and if the client prevails. . .” See Global Contingent Fee Retainer Agreement. On April 24, 2009, Clarence Astorga was involved in an accident. Plaintiff, Better Care Medical Rehabilitation, Inc., (“Better Care”) submitted a claim for personal injury protection (“PIP”) benefits. Defendant, Infinity Auto Insurance Company (“Infinity”), received Health Insurance Claim Forms (HCFAs) from Better Care for the services allegedly rendered to claimant Clarence Astorga.
On or about August 17, 2009, Infinity conducted an examination under oath of the claimant Clarence Astorga. The claimant advised that he did not receive some of the treatment that Better Care had billed and sent to Infinity. After a potential language barrier issue with Ms. Astorga, a second examination under oath was conducted with a translator. During the second examination under oath Mr. Astorga again stated that he did not receive certain treatment from Better Care. Infinity then denied all the bills alleging services not rendered.
Based on the statements made by the insured during the examination under oath, Infinity denied all the bills alleging that services were not rendered. In response, Plaintiff filed suit to recover payment for services rendered to Infinity’s insured, Ms. Astorga. After a favorable jury trial verdict, Plaintiff filed a Motion for Determination of Attorney’s Fees and Costs including the award of a contingency fee multiplier. The Court must first calculate the proper “lodestar” by determining “reasonable” hourly rates and multiplying those rates by the “reasonable” number of hours spent on the engagement. The Court must then decide whether a “contingency fee multiplier” is warranted and, if so, the appropriate multiplier to be employed. See Florida Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla. 1985); Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990).Lodestar
A lodestar computation for attorney’s fees — that is, a reasonable hourly rate multiplied by the reasonable number of hours for the work performed — carries “a strong presumption” that it represents a reasonable fee for the services provided on a contingency fee basis. See Florida Peninsula Ins. Co. v. Wagner 196 So. 3d 419 (Fla. 2nd DCA 2016) [41 Fla. L. Weekly D1279a] citing Federated Nat’l Ins. Co. v. Joyce, 179 So. 3d 492, 493 (Fla. 5th DCA 2015) [40 Fla. L. Weekly D2606a] (quoting Progressive Express Ins. Co. v. Schultz, 948 So.2d 1027, 1030 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D548b]). Specifically, there are factors this Court may consider:
(1) The time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for similar legal services.
(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 the lawyer or lawyers performing the services.
(8) Whether the fee is fixed is contingent.
Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145, 1150 (Fla. 1985). The Supreme Court in Rowe adopted this approach as it found that it provided “suitable foundation for an objective structure” to be employed in fee shifting cases. Id.
The Rowe Court explained the importance of keeping accurate and current records of work done and time spent on a case, particularly when someone other than the client may pay the fee.” Id. The court should not award fees for time it finds to be duplicative, excessive or unnecessary. Rowe at 1150; See Rathmann v. Rathmann, 721 So. 2d 1218 (Fla. 5th DCA 1998) [24 Fla. L. Weekly D61f] (“[w]hile the parties have the right to employ as many lawyers as they choose, the court will not assess lawyer fees for or against any party for more than one lawyer for a matter in which more than one lawyer is not required”); No. Dade Church of God, Inc. v. JM Statewide, Inc. 851 So. 2d 194 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D1434b] (“[t]he time sheets also reflect a significant amount of time spent in conferences between the partner and the associate who were working on the case as well as multiple attorneys performing or reviewing the same items. Duplicative time charged by multiple attorneys working on the case are generally not compensable”). Gulfstream Prop. & Cas. Ins. Co., at 4.
The second half of the “lodestar” equation requires the court to determine “reasonable hourly rate for the services of the prevailing party’s attorney.” Id. In establishing the hourly rate the court must take into account, the “factors” specified in rule 4-1.5 of the Rules Regulating the Florida Bar, “except the ‘time and labor required,’ the ‘novelty and difficulty of the question involved,’ the ‘results obtained,’ and “[w]hether the fee is fixed or contingent.’ Id. The party seeking the fee “carries the burden of establishing the prevailing ‘market rate.’ Id.
In this case, the Court has carefully reviewed Plaintiff’s counsel’s billing records, the amount of time spent on this case by counsel, and the opinions of the experienced and well prepared expert witnesses called by the parties — Carlos A. Lopez, Jr. (Plaintiff’s expert) and Dawn Jayma (“Defendant’s expert). The Court also considered the legal authorities submitted by the parties and all of the “factors” set forth in Rowe and Florida Bar Rule 4-1.5(b).
The Court upon consideration of the evidence — both quantitatively and qualitatively — and all pertinent “factors” that inform its analysis, the Court finds that the “reasonable” number of compensable hours expended by Plaintiff’s counsel, and the “reasonable” hourly rates to be applied are as follows:
Peter DePrimo 203.5 hours $475 rate = $96,662.50
Alan Alvarez 111.5 hours $550 rate = $61,325.00
Katiana Fleitas 7 hours $425 rate = $2,975.00
Armando Fleitas 16.2 hours $350 rate = $5,670.00
Therefore, the total “Lodestar” is $166,632.50Multiplier
This Court having calculated the “Lodestar,” must also consider whether to apply a contingency fee “multiplier” based on the facts and the evidence presented. See Joyce v. Federated National Ins. Co., 228 So. 3d 1122 (Fla. 2017) [42 Fla. L. Weekly S852a]. The question of whether this Court may apply the multiplier is governed by the standards in outlined in Standard Guaranty Insurance Company v. Quanstrom, 555 So. 2d 828 (Fla. 1990). Specifically, Quanstrom sets out the factors to be considered:
[T]he trial court should consider the following factors in determining whether a multiplier is necessary: (1) whether the relevant market requires a contingency fee multiplier to obtain competent counsel; (2) whether the attorney was able to mitigate the risk of nonpayment in any way; and (3) whether any of the factors set forth in Rowe are applicable, especially the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client.
Id. At 834.
In various rulings, the Florida Supreme Court has emphasized the proper justification for the imposition of the multiplier. The contingency fee multiplier under Quanstrom serves to correct a deficiency in a legal market for representation. Florida Peninsula Ins. Co. v. Wagner, 196 So. 3d 419, 422 (2016) [41 Fla. L. Weekly D1279a] citing Sun Bank of Ocala, 564 So. 2d at 1079; Prime Care Chiropractic Ctrs. P.A., 93 So. 3d at 347; see also Bell v. U.S.B. Acquisition Co., Inc., 734 So. 2d 403, 411 (Fla. 1999) [24 Fla. L. Weekly S220a] (“A primary rationale for the contingency risk multiplier is to provide access to competent counsel for those who could not have otherwise afford it. Additionally, in Jurado v. Fidelity National Property and Casualty Insurance, 24 Fla. L. Weekly Supp. 223a (11th Cir. April 22, 2016)(Hon. Michael Hanzman), the court discussed the types of cases where a multiplier may be appropriate — pointing out they are intended to “level the playing field” and should be awarded only when the evidence shows that competent counsel could not be secured on a contingent fee basis sans the prospect of recovering a multiplier to be paid by the client’s adversary. Gulfstream Prop. & Cas. Ins. Co. at 5.
In the matter sub judice, all attorneys for the Plaintiff testified that they would not have agreed to represent the Plaintiff but for the possibility of obtaining a multiplier. Additionally, two very experienced and reputable attorneys, Kenneth Schurr, Esq. and Stuart Koenigsberg, Esq. testified that they either would have not taken on this case or would have agreed to take on the case with the expectation of obtaining a multiplier. Plaintiff’s expert witness, Carlos Lopez, Jr. also opined that experienced PIP lawyers would not have taken this case absent the ability to recover a multiplier. While the Court notes the credible testimony provided by the witnesses, the evidence failed to show that Better Care had any difficulty finding competent counsel to represent them in this insurance coverage dispute.
The evidence showed that attorney Mr. DePrimo entered into in a master retainer agreement with Better Care. This master retainer agreement, signed prior to the accident in this matter, allowed Mr. DePrimo to file demand letters on files sent to him by the Plaintiff. No evidence was presented to show any distinctive agreement for this specific case that noted any special circumstances with agreeing to taking on this case. Additionally, no evidence was presented that Better Care had any difficulty to obtain competent counsel. In fact, the evidence presented was that at the time this matter was initiated, Better Care also had other lawyers representing Plaintiff in other PIP claims.
Further, the Court heard testimony from the Defendant’s expert, Ms. Jayma, who ultimately opined that the relevant market did not require a multiplier in order to obtain competent counsel. Ms. Jayma’s opinion was based on her experience handling and overseeing cases analogous with the exact issues herein, and on her review of documents which included docket reviews of numerous cases where various Plaintiff’s attorneys litigated PIP cases with the same fact pattern. Moreover, the evidence showed that approximately 187 cases have been filed by Better Care in Miami-Dade County related to PIP.1 Those cases were all handled by different Plaintiff attorneys in the community, demonstrating the robust legal market for Plaintiff PIP lawyers in Miami-Dade County, and Better Care’s awareness and relationship with members thereof. Unlike the facts in Joyce where there were no other attorneys in St. John’s County willing to represent the Plaintiff in its case, here, Better Care already had multiple attorneys handling PIP claims for them. As such, the evidence does not support the contention that the relevant market requires a multiplier in order to obtain competent counsel.
In considering whether to award a multiplier to counsel, Alan Alvarez, who entered the case at the trial stage and tried the case, the Court must considered the following facts: 1) At the time Mr. Alavrez agreed to take the case, Better Care was already represented by Mr. DePrimo — an attorney this court finds to be extremely competent. 2) Additionally, Mr. DePrimo stated in his deposition that he was the one who made the decision to bring in Mr. Alvarez not the client.
Since first prong for the award of the multiplier has not been met, the court need not reach whether the attorney was able to mitigate the risk of nonpayment in any way, or whether any of the factors set forth in Row are applicable. For the foregoing reasons, the court finds that competent and substantial evidence does not support the award of a contingency fee multiplier in this case and denies Plaintiff’s request for same.Taxable Costs
With respect to taxable costs, this Court finds that expert witness Carlos A. Lopez, Jr., Esq. has reasonably expended 45.5 hours at $550.00 for his services in this case, totaling $25,025.00. The hourly rate for Mr. Lopez, Jr. was stipulated to by the parties. While Attorney Lopez, Jr. provided the court with a breakdown of the 45.5 hours he expended, the court notes that the Defendant did not present any evidence to challenge his claim.
Further, the parties stipulated to taxable costs in the amount of $3,111.14. Additionally, Attorney Amando Alan Alvarez has expended the amount of $1,887.60 [376.10, $547.00 and $964.50] in taxable costs from Universal Court Reporting covering the costs of transcripts, the transcripts and invoices of, and for, which have been filed of record by the Plaintiff Better Care.
The Court denies to award expert witness fees for Dr. Marie K. Ramnanan, D.C. and Miguel Fuentes, LMT since said witnesses were not designated as expert witnesses in Plaintiff’s Pre-Trial Catalog dated December 17, 2014.
WHEREUPON, IT IS ORDERED AND ADJUDGED:
1. That Peter G. DePrimo, Esq. shall recover attorney’s fees from the Defendant INIFITY AUTO in the amount of $96,662.50, together with prejudgment interest at the rate of 5.72% per annum from June 21, 2017 through August 3, 2018, in the amount of $6,180.47, totaling $102,842.97.
2. That Amado Alan Alvarez, Esq. shall recover attorney’s fees from the Defendant INIFITY AUTO in the amount of $61,325.00, together with prejudgment interest at the rate of 5.72% per annum from June 21, 2017 through August 3, 2018, in the amount of $3,921.04, totaling $65,246.04.
3. That Katiana Fleites, Esq. shall recover attorney’s fees from the Defendant INIFITY AUTO in the amount of $2,975.00, together with prejudgment interest at the rate of 5.72% per annum from June 21, 2017 through August 3, 2018, in the amount of $190.22, totaling $3,165.22.
4. That Armando Fleites, Esq. shall recover attorney’s fees from the Defendant INIFITY AUTO in the amount of $5,670.00, together with prejudgment interest at the rate of 5.72% per annum from June 21, 2017 through August 3, 2018, in the amount of $362.53, totaling $6,032.53.
5. That DePrimo Fleites, P.A. shall recover taxable costs from the Defendant INFINITY AUTO in the amount of $3,111.14, together with pre judgment interest at the rate of 5.72% per annum from June 21, 2017 through August 3, 2018, in the amount of $168.86, totaling $3,282.86.
6. That Attorney Amado Alan Alvarez shall recover taxable costs from the Defendant INFITY AUTO in the amount of $1,887.60.
7. That Carlos A. Lopez, Jr., Esq. shall recover expert witness fees from the Defendant INFINITY AUTO in the amount of $25,025.00.
8. That post judgment interest shall accrue on the foregoing sums at the rate of 5.72% per annum from the date hereof until fully satisfied, all of which let execution issue.
9. This Court hereby reserves jurisdiction to enforce the terms of this Final Judgment, including the award of additional attorney’s fees in the event further proceedings are necessary to enforce any of the terms.
__________________
1The Defendant calculated approximately 90 of those cases were filed by DePrimo Fleitas.