This is the appeal of an Amended Final Judgment Awarding Costs and Attorney's

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1 IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT, IN AND FOR SEMINOLE COUNTY, FLORIDA STATE FARM MUTUAL AUTOMOBILE APPELLATE DIVISION INSURANCE COMPANY, CASE NO.: L.T. CASE NO.: CC Appellant, vs. HEIDI KRAENGEL, Appellee. / Decision filed January 30, Appeal from County Court Seminole County, Florida Honorable John R. Sloop Robert H. Oxendine, Esquire for Appellant Mark A. Nation, Esquire Jane Kreusler-Walsh and Rebecca J. Mercier, P.A. for Appellee PER CURIAM. This is the appeal of an Amended Final Judgment Awarding Costs and Attorney's Fees totaling $596, including interest. This court has jurisdiction. Appellant, State Farm Mutual Automobile Insurance Company (hereinafter "State Farm") raises three issues: 1) Whether the trial court abused its discretion in determining appellee's counsel claim for hours was reasonable? 2) Whether the trial court abused its discretion in determining an hourly rate of $ per hour was reasonable? 3) Whether the trial court abused its discretion in awarding appellee's counsel a multiplier of 2.5?

2 FACTS The plaintiff in this case, Heidi Kraengel, was involved in an automobile accident in 1995 and applied for PIP benefits from State Farm for TMJ which her seven treating physicians all believed were caused by the accident. At the time of the accident involved in this case, Kraengel was still treating for a prior accident. She did not seek medical attention at all for eight days after the accident. She did not seek treatment for complaints of jaw discomfort until three months after the accident. In addition, shortly after the accident at issue in this case, she was the victim of domestic violence. State Farm denied her PIP benefits on the ground her TMJ was not caused by the 1995 accident. The case went to trial in 1998, after protracted litigation, and the jury awarded Kraengel almost $12, in PIP benefits, the entire amount she was seeking. This case involved a record consisting of fourteen volumes totaling 2,440 pages, including four volumes of jury trial transcript. In addition, several videotaped expert depositions, not included in the record, were introduced at trial. There were numerous hearings and 780 pages of exhibits attached to the deposition of just one witness, Dr. James Ipser, an astrophysicist, State Farm wished to call. Attached to Mr. Ipser's curriculum vitae was a sixteen-page list of cases in which he had either been deposed or testified at trial. Several of the cases lacked the case number and phone number of an attorney. Kraengel's attorney tracked down the depositions and trial transcripts of testimony Ipser gave in those cases, reviewed them twice (according to his attorney's fee affidavit), read all of the articles attached to Ipser's deposition and successfully 2

3 limited the scope of Ipser's testimony at trial so that Ipser was not allowed to give his most damaging opinion - that the impact of the accident was no worse than falling onto a feather bed. In addition, State Farm called a dentist, Dr. Charles Gill, as an expert at trial to attempt to discredit the testimony of Plaintiff's seven treating physicians and dentists. Dr. Gill testified Plaintiff needed the treatment she received, but that her problem was not caused by the automobile accident as claimed. Plaintiff's attorney tracked down depositions and prior trial testimony of Gill, read articles attached to his deposition and successfully discredited Dr. Gill's testimony at trial because the jury awarded Plaintiff almost $12, in this litigation, which was exactly what she claimed. The trial court made the following findings of fact in determining the number of hours claimed by appellee's counsel was reasonable: 1. Plaintiff's attorney's fees expert reviewed both plaintiff' file and spoke with plaintiff's counsel regarding the issues in the case. 2. Defendant's attorney's fees expert reviewed defendant's file, plaintiff's affidavit of time, spoke with defendant's counsel regarding the issues presented in the case but did not review plaintiff's counsel's file. Defendant's counsel did not depose plaintiff's counsel about his time. 3. Plaintiff's counsel made a good faith effort to exclude hours that were excessive, unnecessary or redundant from the fee request. 4. Plaintiff's expert was an experienced trial attorney who had almost 19 years' experience practicing law in the relevant market. 3

4 NUMBER OF HOURS SPENT ON LITIGATION A trial court's findings of fact with regard to an award of attorney's fees are presumed correct and an appellate court should not substitute its judgment unless the record is "devoid of substantial competent evidence to support the award..." Brake v. Murphy, 736 So.2d 745 (Fla. 3 rd DCA 1999); accord Moore v. Excal Enterprises, Inc., 25 FLW D2029 (Fla. 2 nd DCA August 23, 2000); Centex-Rooney Construction Co. Inc. v. Martin County, 725 So.2d 1255 (Fla. 4 th DCA 1999). Unless State Farm shows a clear abuse of discretion, this court should not disturb the award on appeal. Centex-Rooney. The party opposing the award of attorney's fees carries the burden of specifically identifying which hours should be deducted and must anticipate and ferret out duplicity of effort spent by attorneys or parties similarly aligned. Id; Brake v. Murphy, 736 So.2d 745 (Fla. 3 rd DCA 1999). A party is entitled to one good lawyer and paralegals postured to parse the case down. Brake. In order to justify an award of attorney's fees, an expert must testify as to 1) the necessity of a lawyer rendering services to the client; 2) the reasonableness of the time expended; and 3) the reasonable value of time considered compensable. Id. "Reasonably expended" means the time lawyers in the community would ordinarily spend to resolve the particular type of dispute at issue. Id. State Farm argues the trial court abused its discretion in accepting the testimony of appellee's expert as to the number of hours that was reasonable to prosecute this case. In addition State farm argues this case involved a relatively simple causation 4

5 issue. This argument is negated not only by the size of the file, but by State Farm's hiring of an astrophysicist to testify to the severity of the crash impact. Appellee obviously needed an attorney given State Farm's hard line approach to this litigation. In fact, the case was referred to appellee's counsel by another attorney. State Farm admits appellee's counsel not only informed himself about the causes of Plaintiff's injury, but also about astrophysics since State Farm intended to dispute the impact of the accident on the human body. Appellee's counsel successfully limited the expert's opinion testimony to exclude the most damaging opinion State Farm intended to offer. Appellee's counsel also successfully discredited State Farm's IME dental expert, Dr. Charles Gill. Dr. Gill testified as an expert in TMJ for State Farm on a regular basis. State Farm never lost a case when Gill testified - until Kraengel. The trial court issued a detailed order setting forth the evidence relied on to determine the number of hours appellee's counsel expended was reasonable. In doing so, the trial court credited the testimony of appellee's expert rather than that of appellant 's expert. Appellant's attorney's fees expert had practiced law for approximately 7 years at the time of the hearing on attorney's fees. He thought appellee's counsel should only recover for hours, although he could not specifically identify which hours should be cut. The expert thought some of the time spent preparing to cross-examine Gill and Ipser was not reasonable, but he did not know how much. He believed appellee's counsel only needed to look at any two of Gill's and Ipser's depositions to prepare for 5

6 cross-examination. Appellant's fees expert admitted appellee's counsel only reviewed medical and scientific journals listed on Gill's and Ipser's depositions and that appellee's counsel was a highly qualified insurance litigator who often settles matters without resorting to litigation. He thought appellant's paralegal's time should be cut but, again, could not specifically identify which hours he thought were unreasonable or unnecessary. He referred the court to graphs and charts presented by State Farm as evidence. He also admitted defense counsel spent in excess of 450 hours on the case. Appellant did not carry the burden of identifying which hours were either unnecessary or duplicitous. Thus, appellant did not show the trial court abused its discretion in finding appellee's counsel was unreasonable in spending hours preparing for and litigating this case. Therefore, this court affirms the finding that hours was a reasonable amount of time for appellee's counsel to spend on this case. HOURLY RATE Appellant argues apellee's counsel does not deserve the hourly rate awarded because he had only been practicing law for seven years when the award was made and the trial court failed to consider the factors set out in Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985) in determining $ per hour was a reasonable hourly rate. Appellee responds that in determining a reasonable hourly rate, the trial court is required to consider 7 factors: 1) the skill involved; 6

7 2) whether other employment is precluded; 3) the customary fee in the locality; 4) responsibility involved in the representation; 5) time limitations imposed by the client or circumstances and additional or special time demands of the client; 6) nature and length of professional relationship with the client; 7) experience, reputation, diligence and ability of the lawyer and the skill, expertise or efficiency of effort reflected in the representation. Both sides presented expert testimony as required by law. The court considered factors 1,3, 4 and 7 in determining a reasonable hourly rate. In addition, Plaintiff's counsel testified accepting Ms. Kraengel's case precluded other employment. While the client did not make special time demands, the circumstances surrounding the case made it difficult - Kraengel's previous car accident and subsequent physical abuse and the expert opinions State Farm intended to offer - particularly that of astrophysicist Ipser. In addition, there was uncontradicted testimony that Plaintiff's counsel was unusually easy to get along with and did not run up hours unnecessarily. Finally, there was testimony that in the relevant market, which included Brevard and Orange Counties, $ to $ per hour was the range of hourly rates applicable to PIP litigation. Thus, at $ per hour, there was substantial competent evidence the trial court's award was at the low end of the hourly range. Therefore, appellant failed to carry the burden of showing the trial court abused its discretion in awarding Plaintiff's counsel $ per hour and this court affirms the award of $ per hour as a reasonable hourly rate. 7

8 MULTIPLIER Appellant argues the lower court neglected to make the findings required by Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990) in determining the maximum contingency multiplier was appropriate. Appellant also argues appellee's expert was not competent to offer testimony regarding the Quanstrom factors because he did not have significant PIP experience. However, Plaintiff's expert had practiced law for over 18 years during which he handled a significant number of personal injury claims. Appellant's expert had only practiced law for seven years at the time of the attorney's fee hearing, so his expertise fails to eclipse that of appellee's expert. Further, appellant's expert did not dispute that appellee's counsel was entitled to a multiplier, but he believed the multiplier should be 1.0 to 1.5. While the Amended Final Judgment finds the case appropriate for a multiplier under Rowe and Quanstrom, it does not specifically enumerate consideration of the Quanstrom factors. However, there is substantial competent evidence in the record to substantiate the multiplier awarded by the trial court. Therefore, the Final Order is affirmed as to the award of a 2.5 multiplier but is remanded to the trial court to set out the factors enumerated in Quanstrom. See Labaton v. Mellert, Case No. 4D (Fla. 4 th DCA December 13, 2000). In all other respects, the Final Judgment is affirmed. MOTION FOR ATTORNEY'S FEES Appellee has filed a Motion for appellate attorney's fees which is hereby granted. The trial court should determine an appropriate amount after hearing. 8

9 opinion. REMANDED to the lower court for further proceedings consistent with this Stephenson, Benson and Nelson, J.J., concur. GENE R. STEPHENSON, Circuit Judge SEYMOUR BENSON, Circuit Judge DEBRA S. NELSON, Circuit Judge 9

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