15 Fla. L. Weekly Supp. 921a
Insurance — Personal injury protection — Attorney’s fees — Where insurer confessed judgment and thereby agreed that it had breached duty to provide explanation of benefits, medical provider is entitled to attorney’s fees and costs despite failure to recover money or property
RADIOLOGY INTERPRETATION, INC., a/a/o CAMILO LAMAZARES, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Small Claims Division. Case No. 05-4236 SP 25 (04). June 26, 2008. Nuria Saenz, Judge. Counsel: Dennis A. Donet, Donet & Donet, L.L.P., Miami, for Plaintiff. T. Roger White, Office of the General Counsel, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION FOR ENTITLEMENT TO ATTORNEY’S FEES & COSTS
THIS CAUSE came before the Court on June 26, 2008, on the Plaintiff’s Motion for Entitlement to Attorney’s Fees and Costs. The Court having heard argument of counsel, reviewed the court file, considered applicable law and being otherwise advised in the premises, it is therefore,
ORDERED AND ADJUDGED as follows:
1. On January 17, 2008, this Court entered a Final Judgment as to Count II of Plaintiff’s Amended Complaint based upon Defendant’s Confession of Judgment.
2. Pursuant to Florida Statute, Section 627.428, “[u]pon the rendition of a judgment . . . against an insurance company . . . the trial court . . . shall adjudge . . . against the insurer . . . a reasonable sum as fees for the . . . attorney prosecuting the suit in which the recovery is had.”
3. Plaintiff argues that it is entitled to attorney’s fees and costs pursuant to § 627.428 as a Judgment was entered in this case.
4. Defendant argues that Plaintiff is not entitled to attorney’s fees and costs as Plaintiff did not recover money, unpaid benefits or even the Explanation of Benefits it sought in its Complaint.
5. Black’s Law Dictionary defines recovery as “the restoration or vindication of a right existing . . . by the formal judgment or decree . . . or obtaining by such judgment, of some right . . . which has been taken away or withheld . . . .”
6. Defendant relies on the case of Allstate Ins. Co. v. De La Fe, 647 So.2d 965 (Fla. 3d DCA 1994), where the Court found that the insured should not have been awarded attorney’s fees prior to a decision on the merits or having ultimately prevailed with a recovery on the policy.
7. The Court in De La Fe correctly denied attorney’s fees since all that had happened was that the Final Judgment of Dismissal was reserved. At the time the Court determined that attorney’s fees were not recoverable, the litigation was really just beginning. The insured had not prevailed nor received a Judgment or Decree.
8. Defendant also relies on Professional Medical Group. Inc. v. United Auto. Ins. Co., 967 So.2d 243 (Fla. 3d DCA 2007), where the Court again denied an award of attorney’s fees to the insured as the insured had only been successful in having an Order of Dismissal reversed. Once again, the litigation at the trial level was just beginning. The insured had not prevailed on the merits and therefore was only entitled to a conditional award of the appellate fees upon it prevailing with a recovery of the policy.
9. In the instant case, the insured prevailed on the merits as Defendant confessed judgment thus agreeing that it had breached its duty to provide an Explanation of Benefits.
10. The insured’s rights were vindicated, restored and it recovered such right in the Final Judgment entered by this Court on January 17, 2008.
11. Neither the Statute, case law or Black’s Law Dictionary construe and/or limit the word recovery to mean that the insured acquired money or property.
12. Plaintiff is entitled to attorney’s fees and costs pursuant to Florida Statute, Section 627.428.
13. The Court reserves jurisdiction to determine the amount of such award.
