15 Fla. L. Weekly Supp. 85b
Attorney’s fees — Insurance — Personal injury protection — Prevailing party — Where insurer’s third-party complaint against medical provider for common law indemnification, alleging assignment of benefits between insured and provider as special relationship required for indemnification, was dismissed, provider is entitled to award of attorney’s fees and costs — No merit to argument that provider is not entitled to fee award because assignment had been revoked by time complaint was filed where insurer filed complaint despite revocation and, if not for fact that provider accepted assignment, provider would not have been party to suit
BRENCE STEWARD, Plaintiff, vs. PROGRESSIVE AUTO PRO INSURANCE COMPANY, Defendant/Third-Party Plaintiff, vs. ALL FAMILY CLINICS OF DAYTONA BEACH, INC. d/b/a FLORIDA MEDICAL ASSOCIATES, Third-Party Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2005-12729-CODL. August 24, 2006. Shirley A. Green, Judge. Counsel: Kimberly P. Simoes, Susan W. Tolbert, P.L., Daytona Beach. William Pratt, Maitland. Thomas Caldwell, Port Orange.
ORDER GRANTING THE THIRD PARTY DEFENDANT’S MOTION FOR ENTITLEMENT TO ATTORNEY FEES
THIS CAUSE came before the Court for consideration on the Third Party Defendant’s Motion to Determine Entitlement to Attorney Fees pursuant to §627.736 and §627.428. Progressive, the Third Party Plaintiff, contends that All Family Clinic of Daytona Beach, Inc. (hereinafter referred to as All Family), the Third Party Defendant, is not entitled to attorney fees pursuant to §627.736 and §627.428. This Court grants All Family’s motion to determine entitlement and awards attorney fees pursuant to §627.736 and §627.428.
FACTS AND CONCLUSIONS OF LAW
Progressive filed a Third Party Complaint for common law indemnification against All Family Clinic, the health care provider for the insured, Brence Stewart. As a basis for its claim for indemnification, Progressive alleged that the existence of an assignment of benefits between All Family and Brence Stewart was sufficient to create the “special relationship” required for indemnification. This Court disagreed that Progressive could seek indemnification from All Family and dismissed the Third Party Complaint with prejudice on June 14, 2006 [13 Fla. L. Weekly Supp. 888a].
Following the final dismissal of the Third Party Complaint, All Family filed a timely motion for attorney fees. Progressive disputed All Family’s entitlement to attorney fees for defending the Third Party Complaint citing that the assignment of benefits was no longer in force when Progressive filed the Third Party Complaint against All Family.
The Court is persuaded by All Family’s argument as to entitlement to attorney fees. The Court notes that the assignment was not in place between the insured and All Family at the time of the filing of the Third Party Complaint, but this fact did not prevent Progressive from filing a suit against All Family.
It is inconsistent and disingenuous for Progressive to now assert to this Court, “no assignment, no attorney’s fees.” All Family accepted the assignment of benefits. Without that acceptance, All Family never would have been a party to this lawsuit because Progressive could not have pled a special relationship based upon that assignment.
The Court also notes that an insured that is no longer an insured under a policy can still sue for benefits for which they were entitled during the policy period. If the insured were to prevail, attorney fees would be awarded. The fact that the assignment might not have been in place is not persuasive.
§627.428 and §627.736(8) are broad enough to cover a health care provider that provided medical care to the insured based upon an assignment of benefits and became subject to litigation because of those services. This is especially true when case law supports the contention that the statute was enacted to discourage insurers from contesting valid claims, to penalize insurance carriers for forcing unjust litigation and to level the playing field so that insurers do not use the superior economic power to prevent individuals from seeking redress in Court. Bassette v. Standard Fire Insurance Co., 803 So. 2d 744 (Fla. 2d DCA 2001); Insurance Company of North America v. Lexow, 602 So. 2d 528, 531 (Fla. 1992); Ivey v. Allstate, 774 So.2d 679 (Fla. 2000); Scottsdale Ins. Co. v. DeSalvo, 748 So. 2d 941, 943 (Fla. 1999); Pepper’s Steel & Alloys, Inc. v. United States of America, 850 So. 2d 462 (Fla. 2003).
A purpose of an award of attorney fees is to dissuade insurers from causing unnecessary litigation. The court is confident that All Family would have preferred to not have been a part of this litigation. Progressive forced All Family into this litigation by filing the Third Party Complaint. All Family had no choice but to defend.
The Court understands that the Third Party Plaintiff, Progressive, might have been seeking a cutting edge solution, and the Court supports that kind of litigation. However, Progressive must appreciate and accept that that kind of litigation comes with a risk, and a miscalculation can sometimes be costly.
The Court finds that the Third Party Defendant, All Family Clinic of Daytona Beach, Inc., is entitled to attorney fees pursuant to §627.736 and §627.428 and reserves jurisdiction as to amount. The Court denies Progressive’s Motion to Strike All Family’s Motion for Attorney Fees. The Court does not rule on the Third Party Defendant’s entitlement to attorney fees pursuant to §57.105 at this time.
