10 Fla. L. Weekly Supp. 574a
Insurance — Personal injury protection — Attorney’s fees — Because insured’s affidavit stating that she does not recall assigning her benefits and did not intend to do so does not contradict medical provider’s assertion that insured did assign her PIP benefits to his office, trial court had competent substantial evidence to support finding that there was an assignment and that medical provider is entitled to award of attorney’s fees
PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant, v. DR. TIM D. CHAPMAN d/b/a SEMINOLE CHIROPRACTIC MEDICINE, ASSIGNEE FOR LARIZA BRITTAIN, Appellees. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1 01-56. June 20, 2003. Appeal from the County Court for Orange County, Wilfredo Martinez, Judge. Counsel: Hinda Klein, Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for Appellant. Peter A. Shapiro, The Law Offices of Peter A. Shaprio, P.A., Orlando, for Appellee. Stephen Diaco, Tampa.
(Before GRIDLEY, HAUSER, and JOHNSON, JJ.)
FINAL ORDER AND OPINION AFFIRMING TRIAL COURT
(PER CURIAM.)Progressive Express Insurance Company (“Appellant”) filed this appeal of the “Judgment of Attorneys Fees and Costs.” This Court has jurisdiction. Fla. R. App. P. 9.030(c)(1)(A). We dispense with oral argument. Fla. R. App. P. 9.320.
On September 28, 2000, Dr. Tim Chapman filed a two-count complaint against Appellant, alleging that he was the assignee of any claims Lariza Brittain may have against Appellant arising out of the medical services Dr. Chapman provided Brittain. Dr. Chapman alleged that Appellant issued an insurance policy to Brittain, and thus Appellant owed Dr. Chapman payment for medical services he provided Brittain due to her injuries sustained in an automobile accident. Appellant moved to dismiss the action, arguing that Dr. Chapman did not have a valid assignment from Brittain. Before this motion was ruled on, however, the underlying claim was settled.
The only issue remaining before the trial court after the settlement was Dr. Chapman’s claim for attorney’s fees and costs. In a Request for Admissions, Appellant asked Dr. Chapman to admit that Appellant “is not disputing Plaintiff’s entitlement to fees and costs but only the amount.” (R. 88.) Dr. Chapman admitted this statement on February 5, 2001. Despite the admission, at the hearing on attorney’s fees, Appellant argued that Dr. Chapman was not entitled to an award of attorney’s fees because he did not receive an assignment from Brittain. At the hearing, the trial court ruled that Dr. Chapman is entitled to an award of attorney’s fees.
“When reviewing the trial court’s determination on the entitlement of attorney’s fees, the standard of review is an abuse of discretion.” Musselwhite v. Charboneau, 840 So. 2d 1158, 1160 (Fla. 5th DCA 2003).
Appellant argues that the trial court erred in finding that Dr. Chapman had an assignment from Brittain, and thus the trial court erred in ruling that Dr. Chapman is entitled to an award of attorney’s fees. The Record, however, demonstrates that there was evidence supporting the trial court’s ruling.
In Dr. Chapman’s affidavit, he states, “Ms. Brittain assigned her PIP benefits to my office so that my office could bill the insurance company Defendant directly and receive payment directly payable to me only. . . . I accepted the assignment of benefits from Ms. Brittain.” (R. 10.) The only evidence submitted by Appellant that Brittain did not assign her benefits to Dr. Chapman is Brittain’s affidavit. Brittain states in her affidavit, “I . . . do not recall assigning my rights and benefits to Dr. Tim Chapman . . . and I did not intend to assign my rights and benefits to Dr. Tim Chapman. . . .” (R. 18) These statements, however, do not contradict the assertion that she assigned her benefits.
Thus, the trial court had substantial, competent evidence in the form of Dr. Chapman’s affidavit (which was not directly contradicted by Brittain’s affidavit) to support its ruling that Dr. Chapman is entitled to an award of attorney’s fees. Therefore, the Court affirms the “Judgment of Attorneys Fees and Costs,” as to do otherwise would constitute impermissibly reweighing the evidence before the trial court. See Patria Publ’n, Inc. v. Armesto, 593 So. 2d 574, 575 (Fla. 3d DCA 1992) (where trial court’s findings were supported by substantial competent evidence, appellate court would be impermissibly reweighing the evidence if it reversed); Froman v. Froman, 458 So. 2d 833, 833 (Fla. 3d DCA 1984) (appellate court can not reweigh the evidence).
Appellee timely filed a motion for appellate attorney’s fees pursuant to Section 627.428, Florida Statutes, and Florida Rule of Appellate Procedure 9.400. As Appellee is the prevailing party, the motion for attorney’s fees is granted.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1. The “Judgment of Attorneys Fees and Costs” is AFFIRMED.
2. “Appellee’s Motion For Attorneys Fees” is GRANTED. Appellee shall have thirty days from the date of this Order to file a proper motion pursuant to Florida Rule of Appellate Procedure 9.400(a) with the lower tribunal. (GRIDLEY, HAUSER, and JOHNSON, JJ., concur.)
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