15 Fla. L. Weekly Supp. 1222a
Insurance — Personal injury protection — Attorney’s fees — Insurer’s breach of obligation to provide explanation of benefits entitles medical provider to award of attorney’s fees and costs irrespective of whether provider recovered on underlying claim for benefits — Amount of fees calculated
METRO INJURY REHAB CENTER, INC., a Florida Corporation (assignee of Ricardo, Yaniza), Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 07-02868 COSO 61. September 29, 2008. Arlene Simon, Judge. Counsel: Russel Lazega, Law Office of Russel Lazega, P.A., North Miami, for Plaintiff. Cassandra Jeffries, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO TAX ATTORNEY’S FEES AND COSTS AND JUDGMENT AWARDING ATTORNEY’S FEES AND COSTS
THIS CAUSE came before the Court on hearing on Plaintiff’s Motion to Tax Attorney’s Fees and Costs (entitlement and amount) and the Court’s having reviewed the Motion and entire Court file; reviewed the relevant legal authorities; heard argument, and been sufficiently advised in the premises the Court finds as follows:
Factual Background: This is a PIP insurance case. Defendant confessed judgment as to Count I of the Plaintiff’s Complaint (breach of contract for failure to provide explanation of benefits). Defendant’s confession of judgment expressly stated that Defendant was acknowledging that it did not send an explanation of benefits as required by F.S. s. 627.428 but that Defendant was contesting any entitlement to attorney’s fees, costs or damages. Addressing the issue of entitlement to attorney’s fees and costs first.
Entitlement to Attorney’s Fees and Costs: This court follows the authority in this circuit set forth in R.J. Trapana, M.D., P.A. (a/a/o Dudley Mabout) v. United Auto Ins. Co.(Broward County Circuit Appellate Case # 03-22360 — Decision of the Honorable Richard Eade 2005) [12 Fla. L. Weekly Supp. 452a] and R.J. Trapana, M.D., P.A. (a/a/o Marcia Hoglo) v. United Auto. Ins. Co. (Broward County Circuit Appellate Case — Decision of the Honorable John Luzzo 2005) which both support entitlement to attorney’s fees and costs in these circumstances. Specifically, the court in R.J. Trapana held that:
[T]he insurer’s obligation to provide an itemized specification is clear. §627.736(4)(b), Fla. Stat. On this issue, no genuine issues of material fact exist. United Automobile’s failure to provide the required specification resulted in a breach of its obligation, entitling Trapana to attorney’s fees and costs. §627.428(1), Fla. Stat.; Ivey v. Allstate Insurance Company, 774 So.2d 679 (Fla. 2001); Grant v. State Farm Fire & Cas. Co., 638 So.2d 936 (Fla. 1994).
Accordingly, Plaintiff’s Motion is hereby GRANTED. The court rejects the argument that Professional Medical Group, Inc. v. United Auto. Ins. Co., 967 So. 2d 243 (Fla. 3rd DCA 2007) requires that the Plaintiff recover on the underlying claim for payment of P.I.P. benefits (Count IV) in order to be able to recover attorney’s fees and costs. Count I is a distinct count and this circuit’s appellate decisions in Trapana and STAT Technologies (above) make clear that attorney’s fees and costs can be awarded for prevailing as to the count for explanation of benefits.
Determination of Amount: Upon consideration of the testimony at hearing and the factors set forth in Florida Patients Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985) and Standard Guaranty Insurance Company v. Quanstrom, 555 So.2d 828 (Fla. 1990), this Court awards fees and costs as follows:
1. Russel Lazega 13.3 hours @ $400.00/hour = $5,320.00 2. Christopher Tuccitto 3.3 hours @ $375.00/hour = $1,237.50 3. J.D. Underwood .3 hours @ $375.00/hour = $112.50 4. Joshua Meadow .1 hours @ $375.00/hour = $37.50 5. Jonathan Warrick 3.3 hours @ $325.00/hour = $1,072.50 6. Judy Angulo 1.9 hours @ $325.00/hour = $617.50 7. Aura Brooks 1.1 hours @ $325.00/hour = $357.50 8. Staff 2.1 hours @ $100.00/hour = $210.00 9. Anthony Tolgeysi (fee expert) 4.8 hours @ $375.00/hour = $1,800.00 10. Taxable Costs $540.00
Accordingly, it is hereby ordered and adjudged and judgment is entered as follows:
JUDGMENT
ORDERED AND ADJUDGED the Plaintiff’s Motion to Tax Attorney’s Fees and Costs is GRANTED. Partial Judgment for Attorney’s Fees is hereby entered in favor of Plaintiff, Metro Injury Rehab Center, Inc., and against Defendant, United Automobile Insurance Company, whose address is 3909 NE 163rd Street, North Miami Beach, FL 33160, in the amount of $11,305.00, together with statutory interest pursuant to F.S. s. 55.03 at a rate of 11% commencing from July 8, 2008 (the date entitlement was determined at hearing), for all of which let execution issue. The Court reserves jurisdiction to address the remaining issues of the complaint.
