10 Fla. L. Weekly Supp. 590a
Insurance — Attorney’s fees — Justiciable issues — Where insurance benefits were exhausted long before suit was filed, suit was frivolous, and insurer is entitled to attorney’s fees — Error to award attorney’s fees for period after date of entitlement hearing — Appellate fees — Where insurer prevailed on issue of entitlement to fees but did not clearly prevail on issue of amount of fees, insurer will only be entitled to appellate fees if it prevails on issue of amount in trial court
MEDICAL REHAB & THERAPY CENTER, Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 01-4705. Division X. L.C. Case No. 98-7715. June 13, 2003. Review of a final order of the County Ct., Hillsborough County. On Appellee’s Motion for Clarification and Motion for Appellate Attorney’s Fees. September 20, 2002. Vivian C. Maye, Judge. Counsel: Timothy A. Patrick, Tampa, for Appellant. Michael C. Clarke, Reynolds & Stowell, P.A., St. Petersburg, for Appellee.
(PER CURIAM.) The decision of the trial court is AFFIRMED, in part, on the authority of U.S. Security Ins. Co. v. Cahuasqui, 760 So.2d 1101 (Fla. 2d DCA 2000) (holding that offer of judgment statute (section 768.79, Florida Statutes) applies to the benefit of defendants in PIP suits notwithstanding section 627.428, pursuant to which attorney’s fees are provided only for an insured), Gulliver Academy, Inc. v. Bodek, 694 So. 2d 675 (Fla. 1997) (allowing an award of attorney’s fees pursuant to 768.69, Florida Statutes, pursuant to motion filed within 30 days after final judgment absent an express reservation of jurisdiction therefor) and pursuant to section 57.105, Florida Statutes (allowing the award of attorneys fees for frivolous lawsuits). The fact that insurance benefits were exhausted long before the lawsuit was filed comprises competent substantial evidence that the lawsuit was frivolous, and reasonable pre-suit investigation would have uncovered that fact.
However, to the extent that the final judgment awards attorney’s fees after April 4, 2002 (the date of the entitlement hearing), we remand this cause back to the trial court to determine the amount of fees up to and including April 4, 2002, only. Attorney’s fees are not awarded for litigating their amount. State Farm Fire & Casualty Insurance Co. v. Palma, 629 So.2d 830 (Fla. 1993); Barron Chase Securities, Inc. v. Moser, 794 So.2d 649 (Fla. 2d DCA 2001). This is true whether fees are awarded pursuant to section 768.79 (See Oruga Corp., Inc. v. AT&T Wireless of Florida, Inc., 712 So.2d 1141 (Fla. 3d DCA 1998)) or section 57.105, Florida Statutes (See Eisman v. Ross, 664 So.2d 1128 (Fla. 3d DCA 1995)).
__________________
ON APPELLEE’S MOTION FOR CLARIFICATION and MOTION FOR APPELLATE ATTORNEY’S FEES.
(PER CURIAM.) Appellee State Farm requests this Court to clarify its opinion in this case as it relates to the date through which attorney’s fees will be calculated. In its motion, Appellee does not suggest there is anything vague about the Court’s opinion, but rather, that the date through which [trial] attorney’s fees are to be calculated is incorrect. Thus, while the motion was entitled as one for clarification, in fact, Appellee seeks a rehearing, and we treat the motion as such. It is timely.
Appellant did not file a response to the motion. Appellee failed to attach the trial court’s Order of Entitlement, which was central to its request, to its motion. However, it provided a reference to the Order of Entitlement’s location in the record, therefore, we grant the rehearing, and revise our opinion to amend the date through which the trial court is to determine the amount of fees to April 3, 2002, from the original April 4, 2002. Our opinion remains otherwise unchanged.
With respect to the motion for appellate attorney’s fees, Appellee prevailed on the issue of entitlement, but did not clearly prevail on the issue of amount.
It is therefore ORDERED that Appellee’s motion for appellate attorney’s fees is GRANTED, contingent upon its prevailing on the issue in the county court. Stringer v. Katzell, 695 So.2d 369 (Fla. 4th DCA 1997). The trial court shall have the authority to consider the matter at the appropriate time, in accordance with Foley v. Fleet, 652 So.2d 962 (Fla. 4th DCA 1995). However, should the award of attorney’s fees be reduced by the County Court as a result of this Court’s opinion, Appellee’s motion for appellate attorney’s fees will be DENIED. (Little and Simms, JJ., concur.)
* * *
