13 Fla. L. Weekly Supp. 1053a
Attorney’s fees — Insurance — Personal injury protection — Appellate fees — Prevailing medical provider — — Where appellate court dismissed for lack of jurisdiction an appeal in which insurer sought review of non-final, non-appealable order, medical provider is entitled to award of appellate attorney’s fees even though there was no decision on merits — Award is conditioned on provider ultimately prevailing in litigation
PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant, v. BARTON LAKE HEALTHCARE CENTERS, on behalf of Jose A. Martinez, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1 06-09. August 25, 2006. Counsel: Daniel J. O’Malley, de Beaubien, Knight, Simmons, Mantzaris & Neal, L.L.P., Orlando. Rutledge M. Bradford, Orlando. Thomas Andrew Player, Weiss Legal Group, P.A., Maitland.
ORDER GRANTING “APPELLEE’S MOTION TO TAX ATTORNEY FEES AND COSTS”
THIS MATTER came before the Court on consideration of “Appellee’s Motion to Tax Attorney Fees and Costs,” filed on July 31, 2006. The Court finds as follows:
On July 20, 2006, the Court dismissed this appeal for lack of jurisdiction, as Appellant sought review of a non-final, non-appealable order. Appellee now moves for an award of attorneys’ fees and costs pursuant to sections 627.736(8) and 627.428, Florida Statutes.
In Arango v. United Automobile Insurance Co., 901 So. 2d 320, 321 (Fla. 3d DCA 2005), the Third District Court of Appeal quashed the order of the circuit court sitting in its appellate capacity that denied the insured’s motion for attorneys’ fees. While the case was on appeal at the circuit court level, the circuit court dismissed the appeal for the insurance company’s failure to timely file its brief. Id. at 321. The circuit court denied the insured’s motion for attorney’s fees on the basis that there was no prevailing party. Id. The Third District looked to section 627.428, which “mandates that an insured be awarded attorneys’ fees when he is the prevailing party on appeal in an action against his insurer.” Id. The court concluded that this includes “cases in which an insurer commences an appeal, but the appeal is then dismissed without a decision on the merits.” Id. The insured was entitled to an award of attorneys’ fees, even though there was no decision on the merits, and the circuit court departed from the essential requirements of the law in denying the motion. Id. at 322.
Based on Arango, Appellee’s motion for attorneys’ fees is granted. In this case and Arango, the appeal was commenced by the insurer and dismissed without a decision on the merits. Thus, Appellee is entitled to an award of attorney’s fees and costs, conditioned on Appellee ultimately prevailing in the litigation. See generally Foley v. Fleet, 652 So. 2d 962, 963 (Fla. 4th DCA 1995) (“When a party moves for “prevailing party” attorney’s fees in connection with a non-final appeal or petition, this court normally grants the motion conditioned on the movant ultimately prevailing in the litigation.”).
Accordingly, it is hereby ORDERED AND ADJUDGED that “Appellee’s Motion to Tax Attorney Fees and Costs” is GRANTED, conditioned on Appellee ultimately prevailing in the litigation. (JOSE R. RODRIGUEZ, LAWRENCE R. KIRKWOOD, and ALICE BLACKWELL WHITE, JJ.)
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