13 Fla. L. Weekly Supp. 350b
Insurance — Personal injury protection — Attorney’s fees
FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, MD, PA a/a/o SHARNA ADDERLY, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2004-SC-10577-O. December 21, 2005. Leon B. Cheek, III, Judge. Counsel: Richard Hale, IV, Rutledge M. Bradford, P.A., Orlando, for Plaintiff. Sunita Beekharry, Orlando.ORDER
THIS CAUSE having come before the undersigned on Plaintiff’s Motion for Entitlement to Attorney’s Fees and Costs and the Court having reviewed the file and being duly advised in the premises it is:
ORDERED AND ADJUDGED that the Plaintiff’s Motion be and is hereby GRANTED.
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[Editor’s Note: The following Motion is included for informational purposes only.]
PLAINTIFF’S MEMORANDUM OF LAW INSUPPORT OF Its MOTION FOR ENTITLEMENT TO ATTORNEY’S FEES AND COSTS
Plaintiff, FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, MD, PA as assignee of Sharna Adderly, by and through their undersigned attorney hereby files this memorandum of law in support of its Motion for Entitlement to Attorneys Fees.
FACTUAL BACKGROUND:
The Plaintiff in this matter is the assignee of Sharna ADDERLY, an insured of the Defendant Insurer. The Plaintiff brought a two count complaint, for Breach of Contract and Declaratory Relief. In its Complaint, the Plaintiff requested attorneys fees pursuant to Fla. Statute 627.428. The Plaintiff prevailed on its claim for Declaratory Relief and the court entered a Final Summary Judgment in Plaintiff’s favor.
THE LAW
The Plaintiff is unequivocally entitled to attorney’s fees and costs pursuant to Florida Statute 627.428 because it prevailed in a claim against an insurer. Florida Statute 627.428 states:
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.
Florida statute 627.428 is by law, part of every insurance contract issued in the state of Florida and governs every legal action between insurers and their insured’s (or assignees). Old Republic Insurance Co. vs. Monsees, 188 So.2d 893 (Fla. 4th DCA, 1966); Orlando Candy Company vs. New Hampshire Fire Ins. Co., 51 F2d 392 (S.D. Fla., 1931); Pendas vs. Equitable Life Assurance Society of the United States, 176 So. 104 (Fla. 1937). The nature/type of the claim involving an insurance carrier is immaterial to a prevailing insured’s entitlement to fees.
The Florida Supreme Court, in State Farm Fire and Casualty Ins. vs. Palma, 629 So.2d 830 (Fla. 1993) stated, “the statute (627.428) clearly provides that attorneys fees shall be decreed against the insurer when judgment is rendered in favor of an insured or when the insured prevails on appeal.” Eliminating any question as to what types of claims 627.428 intended to cover, the court noted, “Because the statute applies in virtually all suits* arising under insurance contracts, we agree . . . [t]hat the terms of section 627.428 are an implicit part of every insurance policy issued in Florida. When an insured is compelled to sue to enforce an insurance contract because the insurance company has contested a valid claim, the relief sought is both the proceeds and attorneys fees pursuant to Fla. Stat. 627.428. The language of subsection (3) which provides that compensation or fees of the attorney shall be included in the judgment or decree rendered in the case also supports this conclusion.” *The only claims for attorneys fees excluded by Florida law from 627.428 are life insurance policies and annuity contracts, if such suit was commenced prior to the expiration of 60 days after proof of the claim was duly filed with the insurer (627.428(2)). The Court went on, “As this court stated in Insurance Co. of North America vs. Lexow, 602 So.2d 528 (Fla. 1992), “if the dispute is within the scope of section 627.428 and the insurer loses, the insurer is always obligated for attorneys fees.”
Lexow, provides a clear guide for how broad reaching a claim for fees under 627.428, is intended to be. In Lexow, the insurer Insurance Co. of North America and Lexow resolved their dispute over insurance proceeds following a fire loss. Thereafter, Lexow recovered additional sums from the active tortfeasor and Insurance Co. of North America then brought a claim for declaratory relief against Lexow regarding the sums obtained by Lexow from the active tortfeasor. Lexow was successful in defeating the insurer’s claim to the proceeds and sought its attorneys fees. The district court denied those fees and the Supreme Court of Florida reversed, granting Lexow its fees pursuant to Fla. Stat. 627.428. The Supreme Court of Florida stated, “Florida courts have consistently held that the purpose of section 627.428 and its predecessor is to discourage the contesting of valid claims against insurance companies and to reimburse successful insured’s for their attorney’s fees when they are compelled to defend or sue to enforce their insurance contracts. Wilder v. Wright, 278 So.2d 1 (Fla.1973); Feller v. Equitable Life Assurance Soc’y, 57 So.2d 581 (Fla.1952); Fewox v. McMerit Constr. Co., 556 So.2d 419 (Fla. 2d DCA 1989); Leaf v. State Farm Mut. Auto. Ins. Co., 544 So.2d 1049 (Fla. 4th DCA 1989). We are persuaded that the lawsuit involved in this case (a claim for declaratory relief) falls within the scope of this rationale. The court went on, “We reject the argument that attorney’s fees should not be assessed against INA because this dispute involved a type of claim which reasonably could be expected to be resolved by a court. INA’s good faith in bringing this suit is irrelevant. If the dispute is within the scope of section 627.428 and the insurer loses, the insurer is always obligated for attorney’s fees.”
In the present case, because the Court granted Plaintiff’s Motion for Summary Judgment, in favor of an insured’s assignee against its insurer, an award of attorney’s fees is warranted as indicated in Lexow,
In Old Republic Insurance Company vs. Monsees, 188 So.2d 893 (Fla. 4th DCA 1966), the 4th District, in awarding fees pursuant to 627.428 (identified as Fla. Statute 627.0127 at the time) to an insured who successfully defeated a claim brought by his carrier, made two very important findings: (1) The application of the statute was not limited to suits for the recovery of money and (2) a recovery of money damages was not a prerequisite to obtaining fees. The court stated, “The application of this statute is not limited to suits for recovery of money. The purpose of the statute is to discourage the contesting of insurance policies in Florida” citing Continental Casualty Co. v. Giller Concrete Co., 116 F2d 431 (Fla. 5th Cir 1941) and Salter v. National Indemnity Co., 160 So.2d 147 (Fla. App. 1964). Simply put, the right to fees under 627.428 is absolute when an insured or its assignee prevail in a claim against an insurer.
Echoing rulings made almost 40 years ago, the Fourth District recently addressed a prevailing party’s entitlement to attorneys fees pursuant to 627.428, on a claim for declaratory relief brought pursuant to Chapter 86. In Amelia O’ Malley v. Nationwide Mutual Fire Insurance Co., 30 Fla. L. Weekly D5 (4th DCA 2004), Nationwide filed a claim for declaratory relief against its insured, alleging it did not owe coverage for a loss sustained. There was a personal injury lawsuit pending at the same time between O’Malley and the tortfeasor and upon O’Malley receiving a verdict less than what had been offered (resulting in no money having to be paid by Nationwide, even if there was coverage), Nationwide dismissed its claim for declaratory relief against O’Malley. As a result of Nationwide’s dismissal of its claim for declaratory relief, O’Malley sought fees for being the prevailing party in the declaratory judgment action.
The Court found that a dismissal of Nationwide’s declaratory action was the functional equivalent of a confession of judgment or verdict in favor of the insured, entitling her to attorney’s fees under ch. 627.428. The nature of the claim was identical to the one presented here: a claim for declaratory relief pursuant to Chapter 86 and a judgment in favor of the Plaintiff.
Not long after the decision in O’Malley, the Fourth District Court of Appeals once again found that a liability carrier’s voluntary dismissal of a declaratory judgment action against an insured operated as the functional equivalent of a confession of judgment, or verdict in favor of the insured, and entitled the insured to attorney’s fees under Florida Statute 627.428. See Unterlack v. Westport Insurance Company, 901 So.2d 387 (2005).
Additionally, the Fourth District’s opinion in United Automobile Insurance Company v. Rousseau, 21 Fla. L. Weekly D2477a (Fla. 4th DCA, 1996) once again makes it very clear that the entitlement to fees is absolute when an insured prevails in its claim against its insurer. Rousseau involved an insured who repeatedly requested a copy of the insured’s policy from the insurer pre-suit and the Insurer failed to provide it. The insurer filed suit for declaratory relief and obtained a judgment in its favor against the insurer. Upon the rendering of said judgment, attorney’s fees were awarded to the Plaintiff pursuant to Fla. Stat. 627.428.
In addition to the above, there have been numerous County Court decisions throughout this State awarding attorney’s fees and costs to prevailing insureds pursuant to Fla. Statute 627.428 following the successful litigation of a claim for declaratory relief. For example, in Rural Metro Ambulance a/a/o Aletha Bryant vs. Liberty Mutual, 11 Fla.. L. Weekly Supp. 583, 568, Ninth Judicial Circuit, Judge Leon Cheek III (2004) the Court granted Plaintiff’s Motion for Summary Judgment on this very issue and reserved jurisdiction to award attorney’s fees and costs to the prevailing party. This exact scenario has also played out in Physical Medicine Group a/a/o Vivian Nieves vs. Allstate Insurance Company; Rural Metro Ambulance a/a/o Sandra Davila vs. Lincoln General Insurance Company; Rural Metro Ambulance a/a/o Shayla Dunlap vs. Lincoln General Insurance Company; Rural Metro Ambulance a/a/o Alma Ortiz vs. U.S. Security; Rural Metro Ambulance a/a/o Frank Cipris vs. State Farm Insurance Company; Florida Emergency Physicians a/a/o Stephanie Carrico vs. American Vehicle Insurance Company; Florida Emergency Physicians a/a/o William Eve vs. American Vehicle Insurance Company; and Florida Emergency Physicians a/a/o Venton Brown vs. Nationwide Insurance Company, Florida Emergency Physicians a/a/o Marvene Jones vs. Progressive Express Insurance Company, Greater Chiropractic Center, a/a/o Gurvinder Gahndi vs. Alpha Property and Casualty Insurance Company all resulting in an entitlement to or award of attorney’s fees and costs under Florida Statute 627.428.
The Defendant may attempt to assert that the Plaintiff is entitled to recover nothing under 627.428 if the Plaintiff received no monetary benefit from the Defendant as a result of prevailing on its claim for declaratory relief. This argument was flatly rejected by the court in O’Malley pursuant to the Florida Supreme Court’s opinion in Wollord v. Lloyd’s & Companies of Lloyd’s, 439 So.2d 217, 218 (Fla. 1983). Wollard held, “. . . 627.428 provides for attorney’s fees ‘upon the rendition of a judgment’ ”. Thus, an award of attorney’s fees is appropriate where the insured is able to secure the functional equivalent of a confession of judgment or a verdict in its favor.
Wherefore, the Plaintiff respectfully requests that this court rule that the Plaintiff is entitled to fees pursuant to Fla. Statute 627.428 as the prevailing party in a claim for declaratory relief pursuant to Fla. Statute 86.
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