12 Fla. L. Weekly Supp. 631b
Insurance — Personal injury protection — Declaratory judgment — Coverage — Error to weigh evidence and make credibility determination when deciding motion for directed verdict/involuntary dismissal — New trial required — Attorney’s fees — Appellate — Plaintiff’s motion for appellate fees for non-final appeal is granted contingent on plaintiff ultimately prevailing with recovery on policy
ROLANDO MATOS, Appellant, v. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 03-625 AP and 04-264 AP. L.C. Case No. 2000-009678 CC 05. April 5, 2005. On Motion for Rehearing from Appeal from Final Judgment and award of attorney’s fees on Motion for Directed Verdict of the County Court in and for Miami-Dade County, Shelley J. Kravitz, Judge. Counsel: Paul A. Sack and Jay M. Levy, for Appellant.
(Before BAILEY, KREEGER, and KARLAN, JJ.)
[Substituted Opinion][Original Opinion at 12 Fla. L. Weekly Supp. 439a]
(KREEGER, Judge.) We grant appellant’s motion for rehearing and substitute the following opinion for our February 8, 2005 opinion [12 Fla. L. Weekly Supp. 439a].
Plaintiff appealed from an Order Granting Defendant’s Motion for Directed Verdict and Final Judgment in Favor of Defendant, which the trial court entered when the Plaintiff rested his case at final hearing. We reverse the decision of the trial judge, for reasons expressed below.
The declaratory judgment count of Plaintiff’s Second Amended Complaint proceeded to trial, the Plaintiff alleging that he was covered under a policy of insurance that United Auto issued to Plaintiff’s uncle. He sought a declaration of his rights to recover PIP benefits for his damages following his accident while he was driving the vehicle “covered” by that policy. United Auto contended that the policy was procured by misrepresentation and fraud, and therefore denied coverage.
The Plaintiff established a prima facie case for a declaratory judgment in his favor at trial, and in ruling on United Auto’s motion for directed verdict (properly denominated in a bench trial as a motion for involuntary dismissal)1, the trial judge did not pronounce any basis for ruling. The trial judge may not weigh evidence when ruling on such a ruling, but must take the evidence presented in the light most favorable to the plaintiff,2 even though the evidence may be conflicting.3 Here it appears that the trial court improperly weighed the evidence and/or made a credibility determination when deciding United Auto’s motion.
The plaintiff/appellant seeks attorneys’ fees on appeal. Appellate attorney’s fees may not be awarded prior to resolution of a case on its merits. Allstate Ins. Co. v. De La Fe, 647 So. 2d 965 (Fla. 3d DCA 1994). However, a court should grant attorney’s fees for a non-final appeal conditioned upon the plaintiff ultimately prevailing with a recovery on the policy. Tench v. Amer. Reliance Ins. Co., 671 So. 2d 801, 802 (Fla. 3d 1996); see also Foley v. Fleet, 652 So. 2d 962 (Fla. 4th DCA 1995). Therefore, we grant plaintiff/appellant’s motion for attorneys fees, contingent on him ultimately prevailing with a recovery on the policy.
For these reasons, we reverse the decision of the trial court and remand the case for a new trial and further proceedings in accordance with this opinion. (BAILEY and KARLAN, JJ., concur.)
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1Fla. R. Civ. Pro. 1.420(b) (2004); Teller v. Richert, 744 So. 2d 1230, 1231 (Fla. 3d DCA 1990).
2Teller, 744 So. 2d at 1231 n.1.
3Foster v. City of Gainesville, 579 So. 2d 744, 776 (Fla. 1st DCA 1991).
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