Kotchman et al v. State Farm Mutual Automobile Insurance Co.

Filing 112

ORDER awarding Defendant attorneys' fees and costs. Signed by Magistrate Judge Julie S. Sneed on 9/18/2017. (LBL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TRACY L. KOTCHMAN and RONNIE S.
KOTCHMAN,
Plaintiffs,
v.

Case No: 8:15-cv-2482-T-JSS

STATE FARM MUTUAL AUTOMOBILE
INSURANCE CO.,
Defendant.
___________________________________/
ORDER
THIS MATTER is before the Court on the affidavits filed by Defendant regarding its
attorneys’ fees and costs (“Affidavits”) (Dkts. 104, 108–11). The Court found Defendant entitled
to its “reasonable costs, including investigative expenses, and attorneys’ fees” beginning on
November 8, 2016, pursuant to Florida’s offer of judgment statute, Section 768.79, Florida
Statutes. (Dkts. 103, 105.) Further, the Court found Defendant the prevailing party for purposes
of taxing costs. (Dkt. 106.) Plaintiffs have not filed objections to the Affidavits. For the reasons
that follow, Defendant is awarded $48,384.50 in attorneys’ fees and $1,337.99 in taxable costs.
I.

Attorneys’ Fees
In this diversity action (Dkts. 1, 8), the substantive law of the state of Florida applies to the

determination of the reasonableness of attorneys’ fees to award. Trans Coastal Roofing Co. v.
David Boland, Inc., 309 F.3d 758, 760 (11th Cir. 2002); Kearney v. Auto-Owners Ins. Co., 713 F.
Supp. 2d 1369, 1373 (M.D. Fla. 2010) (“Just as a federal court must apply state law to determine
whether a party is entitled to fees, it must also apply state law to resolve disputes about the
reasonableness of fees.”).

Florida courts, however, apply the federal lodestar approach as “a suitable foundation” for
evaluating the reasonableness of a request for attorneys’ fees. Florida Patient’s Comp. Fund v.
Rowe, 472 So. 2d 1145, 1150 (Fla. 1985). The lodestar process first requires a determination of
the number of hours reasonably expended on the litigation. Id. “Florida courts have emphasized
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 burden is on the movant
to present “records detailing the amount of work performed,” in order for the court to “accurately
assess the labor involved.” Id. Courts may reduce the number of hours requested based on
inadequate documentation or hours billed that are excessive or unnecessary. Id. “The ‘novelty
and difficulty of the question involved’ should normally be reflected by the number of hours
reasonably expended on the litigation.” Id.
Defendant requests fees of $48,384.501 for 364.6 hours of worked performed by its
attorneys. (Dkts. 104, 108-1, 108-2.) Specifically, lead attorney Jamie McKean billed 65.1 hours;
associate attorney Kendall (Obreza) Pfeifer, who was the second chair in the trial of this case,
billed 220.8 hours; shareholder Adam Shelton billed 1.5 hours; shareholder Dale Parker billed 0.1
hours; associate attorney Eric Hogrefe billed 1.4 hours; associate attorney Alexandra Crittenden
billed 7.3 hours; paralegal Joanna Merhi billed 65.5 hours; paralegal Susan Bennett billed 0.3
hours; and paralegal John O’Connor billed 2.6 hours. (Dkt. 104.)
Defendant’s counsel submitted detailed records of the time billed to Defendant in this
matter. (Dkts. 108-1, 108-2.) Upon review of these detailed billing records, the Court concludes
that the 364.6 hours were reasonably expended on this litigation. Specifically, the billing records
reflect that Defendant’s counsel completed the following reasonably-undertaken tasks: preparing

1

Although Defendant’s attorneys billed Defendant a total of $49,278 (Dkts. 108-1, 108-2), Defendant seeks the
amount it has paid its attorneys, which is $48,384.50. (Dkt. 104 ¶¶ 8–11, 14–15.)

-2-

the offers of settlement to Plaintiffs; responding to and propounding discovery; reviewing
extensive non-party production; taking depositions; conferring with experts; reviewing Plaintiff
Tracy Kotchman’s medical records; researching applicable rules governing discovery to determine
whether to file discovery-related motions; researching applicable law governing expert testimony
and uninsured motorist coverage law to determine whether to file Daubert motions and motions
in limine; preparing pretrial motions and other required filings; preparing for and attending status
and pretrial conferences; preparing for and trying the case in a four-day trial; and preparing
posttrial filings and reports to Defendant. (Dkts. 108-1, 108-2.) The time and labor involved was
commensurate with Ms. Kotchman’s extensive medical history, including accidents before and
after the accident at issue in this case, which required voluminous non-party discovery. (See Dkt.
110.) This evidence was necessary to Defendant’s presentation of its defenses regarding the
medical expenses reasonably incurred by Ms. Kotchman as to the accident at issue in this case as
well as the permanency of her injury. (Id.) Further, the billing records do show that unnecessary
or excessive time was expended on this case. Accordingly, the Court concludes that the time
expended on this litigation by Defendant’s counsel was reasonable.
Next, the Court must determine the reasonable hourly rate for the attorneys and paralegals
who provided Defendant legal services. Rowe, 472 So. 2d at 1150. The movant bears the burden
of establishing the prevailing market rate, which means “the rate charged in that community by
lawyers of reasonably comparable skill, experience and reputation, for similar services.” Id. at
1151. The court “is itself an expert on the question [of attorney’s fees] and may consider its own
knowledge and experience concerning reasonable and proper fees.” Norman v. Hous. Auth. of City
of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988) (quotation omitted).

-3-

Defendant requests the following hourly rates for the attorneys and paralegals providing it
legal services in this matter: $175 per hour for lead attorney Jamie McKean, who has practiced
insurance defense law since 2009; $140 per hour for associate attorney Kendall (Obreza) Pfeifer,
who has practiced insurance defense law since 2013; $175 per hour for shareholder Adam Shelton,
who has practiced insurance defense law since 2002 and is a board certified civil trial lawyer; $175
per hour for shareholder Dale Parker, who has practiced insurance defense law since 1991 and is
a board certified civil trial lawyer; $140 per hour for associate attorney Eric Hogrefe, who has
practiced insurance defense law since 2014; $140 per hour for associate attorney Alexandra
Crittenden, who has been licensed since 2012 and has practiced insurance defense law for one
year; $80 per hour for paralegal Joanna Merhi, who has worked in the insurance defense industry
since 2014 and has been a paralegal since 2015; $80 per hour for paralegal Susan Bennett, who
has worked in the insurance defense industry since 1992 and has been a paralegal since 1994; and
$80 per hour for paralegal John O’Connor, who has worked in the insurance defense industry since
2000 and has been a paralegal since 1992. (Dkts. 104, 109.)
Given the skill and experience of the professionals billing Defendant for their work in this
matter, the Court concludes that the hourly rates of $175 per hour for shareholders’ time and $140
per hour for associate attorneys’ time are reasonably hourly rates. Specifically, these rates are in
line with the prevailing market rates charged in this legal community for insurance defense. See
Rynd v. Nat’l Mut. Fire Ins. Co., No. 8:09-CV-1556-T-27TGW, 2012 WL 939387, at *14 (M.D.
Fla. Jan. 25, 2012), report and recommendation adopted, No. 8:09-CV-1556-T-27TGW, 2012 WL
939247 (M.D. Fla. Mar. 20, 2012) (concluding that $425, $275, and $200 per hour were reasonable
hourly rates for attorneys based on the court’s “knowledge of the prevailing market rate in Tampa
for insurance litigators with comparable experience and skill, and the presentations of [the

-4-

attorneys] during court proceedings”); Ottaviano v. Nautilus Ins. Co., 717 F. Supp. 2d 1259, 1269
(M.D. Fla. 2010) (reducing the hourly rate of an attorney with twenty years’ experience from $400
to $275 per hour in an insurance coverage case, finding this rate consistent with the court’s
“knowledge of the prevailing market rate for insurance litigators with comparable experience and
skill”). Further, $80 per hour for paralegals’ time is also a reasonable hourly rate. See Rynd, 2012
WL 939387, at *14 (finding $95 per hour a reasonable hourly rate for a paralegal in Tampa
working on a bad faith insurance case); Kearney, 713 F. Supp. 2d at 1377 (reducing a paralegal’s
hourly rate from $110 to $65 per hour in an insurance bad faith case).
Accordingly, the Court concludes that the appropriate lodestar in this case is $49,278, but
awards Defendant the $48,384.50 it seeks, which represents the amount it has paid its counsel.
(Dkt. 104 ¶¶ 8–11, 14–15.)
II.

Costs
Federal courts are bound by the limitations set out in 28 U.S.C. § 1920, meaning the

categories of costs that may be taxed, absent explicit statutory or contractual authorization.
Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 445 (1987). Taxable costs are limited
to the following: (1) fees of the clerk and marshal; (2) fees for printed or electronically recorded
transcripts necessarily obtained for use in the case; (3) fees related to printing and witnesses; (4)
fees for exemplification and the costs of making copies of any materials where the copies are
necessarily obtained for use in the case; (5) docket fees; and (6) compensation of court-appointed
experts and fees related to interpretation services. 28 U.S.C. § 1920.
Defendant requests that the following costs be taxed: $643.20 in costs for obtaining copies
of Ms. Kotchman’s medical records, $537.50 in costs for obtaining deposition transcripts, and
$157.29 in costs to create demonstrative exhibits for trial. (Dkt. 104 ¶ 19; Dkt. 111.) The Court

-5-

concludes that these costs are taxable. See 28 U.S.C. § 1920. First, Ms. Kotchman’s medical and
employment records were necessarily obtained in order for Defendant to assess Ms. Kotchman’s
claims and alleged damages. (See Dkt. 111.) Further, they were used by Defendant’s experts to
evaluate Ms. Kotchman’s claims and by Defendant’s counsel to prepare for depositions and as
evidence presented at trial. (Id.) Next, the deposition transcripts were also necessarily obtained
by Defendant for its counsel to prepare for examining witnesses at trial. (Id.) Finally, the enlarged
photograph exhibits of the damage to the cars involved in the accident were necessarily obtained
by Defendant to support its defense of the lack of the severity of the accident at issue. (Id.) Thus,
Defendant is awarded a total of $1,337.99 in taxable costs pursuant to 28 U.S.C. § 1920.
Accordingly, it is ORDERED that Defendant, State Farm Mutual Automobile Insurance
Co., is awarded $48,384.50 in attorneys’ fees and $1,337.99 in taxable costs against Plaintiffs
Tracy Kotchman and Ronnie Kotchman.
DONE and ORDERED in Tampa, Florida, on September 18, 2017.

Copies furnished to:
Counsel of Record

-6-