12 Fla. L. Weekly Supp. 431a
Attorney’s fees — Insurance — Personal injury protection — Prevailing medical provider — Where trial court granted insurer’s motion to dismiss due to exhaustion of policy limits and subsequently vacated dismissal, reinstated action and awarded attorney’s fees and costs to provider based on finding that provider was entitled to award for having to sue to get PIP payout log and find out status of availability of benefits, trial court erred in awarding fees since no final judgment has been rendered against insurer
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. CICERO ORTHO MED CENTER, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 03-417 AP. L.T. Case No. 02-1545 SP 24 01. February 22, 2005. On appeal from the County Court for Miami-Dade County. Jeffrey D. Swartz, Judge. Counsel: Mark A. Gatica, for Appellant. Dean A. Mitchell, for Appellee.
(Before JEFFREY ROSINEK, SCOTT J. SILVERMAN, and DARYL E. TRAWICK, JJ.)
(JEFFREY ROSINEK, J.) Appellant, United Auto Insurance Company, seeks review of the trial court’s May 6, 2003, order granting Plaintiff’s Motion for Entitlement for Attorney’s Fees and Costs in favor of Appellee, Cicero Ortho-Med Center.
This case arose from Cicero filing suit against United Auto after its bill in the amount of $450.00 became overdue. Cicero’s bill was for medical treatment to Lorenzo Aristides pursuant to an assignment following an auto accident on August 22, 2001. The date of Cicero’s medical service to Aristides was February 7, 2002.
Cicero’s bill was received by United Auto on March 6, 2002. United Auto then had thirty days to investigate and pay the bill. United Auto did not pay the bill. The bill became overdue April 5, 2002. United Auto gave no reason for non-payment of the bill. On May 23, 2002, more than 75 days after the bill was submitted, and more than 45 days after the bill became overdue, Cicero’s attorney sent certified mail to United Auto requesting its PIP Payout Log.
United Auto received Cicero’s request for the PIP Log on May 29, 2002. United Auto ignored Cicero’s request for its PIP Log, but it did take other action. Upon its receipt of Cicero’s request for the PIP Log, United Auto issued two checks to two providers (not Cicero) exhausting Cicero’s policy limits. Despite United Auto having issued its checks exhausting the policy limits, they continued to ignore Cicero’s request, and gave no notice to Cicero that the policy limits were now exhausted.
Cicero waited an additional 34 days with no response to its request for the PIP Payment Log, until July 2, 2002, at which time it sued United Auto for breach of the PIP statute, breach of contract, and for declaratory relief. After suit was filed, Cicero commenced discovery. By request for production served August 16, 2002, Cicero requested United Auto to produce its PIP print out and other information pertinent to its status as a claimant. United Auto ignored Cicero’s Request for Production. United Auto did not move to dismiss or answer the Complaint within the time permitted by the rules of procedure.
On March 25, 2003, United Auto filed a Motion to Dismiss asserting: “The benefits are exhausted in this case.” The Request for Production of August 16, 2002 required the information to be provided within 30 days of the request. The log was not provided until March 26, 2003.
Upon receipt of United Auto’s Motion to Dismiss, Cicero learned, for the first time, that benefits under the policy were exhausted according to the PIP Payment Log attached to the motion to dismiss. According to the PIP Log, Cicero’s bill was received March 6, 2002. Cicero’s bill accrued, thirty days thereafter, on April 5, 2002. There is no issue in this appeal as to whether Cicero’s bills were necessary, reasonable or related to the accident sued upon.
The trial court granted United Auto’s Motion to Dismiss. Cicero moved to vacate the order and for entitlement to attorney’s fees and costs. The trial court vacated the dismissal. Thereafter, Cicero moved for entitlement to attorney’s fees and for entry of final judgment. The trial court never entered a Final Judgment. United Auto served its “opposition to plaintiffs entitlement to attorney’s fees” asserting Cicero had failed to plead entitlement to fees or to recite the legal basis for fees. A hearing was held on May 6, 2002.
The court vacated its dismissal, re-instated the action, and found that Cicero was entitled to attorneys fees for having to sue to get the PIP Payment log and to find out for the first time, after suit, the status of the availability of benefits. The court entered a fee judgment for Cicero’s attorney’s fees. Cicero moved for entry of a final judgment and submitted a proposed final judgment and order granting motion for final judgment which were not entered by the trial court prior to United Auto’s notice of appeal within eight days of the final judgment for fees and costs. The trial court did enter a final judgment for attorney’s fees and costs. United Auto has appealed that fee judgment.
Statutory authorization for attorney’s fees is to be strictly construed. Sarkis v. Allstate Ins. Co., 863 So. 2d 210 (Fla. 2003). Moreover, a statute imposing a penalty must be construed in favor of the one against whom the penalty is imposed and is never extended by construction. Id.
In insurance related cases, attorney’s fees may be granted:
Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had. §627.428(1), Fla. Stat. (2003)
The trial court’s Order, dated May 3, 2003, which vacated its earlier Order, dated March 31, 2003, of Dismissal with Prejudice is not a judgment or decree, rather it is an interlocutory order. We find that no final judgment has been rendered for the purposes of §627.428(1), Fla. Stat. (2003) against United Auto in the instant case. Thus, we are obliged to follow the clear directions of §627.428(1), Fla. Stat. Therefore, this court following §627.428(1), Fla. Stat. (2003), finds the trial court erred in awarding Cicero’s Motion for Entitlement for Attorney Fees and Costs.
REVERSED AND REMANDED. (SCOTT J. SILVERMAN and DARYLE E.TRAWICK, JJ., CONCUR.)
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