16 Fla. L. Weekly Supp. 316a
Online Reference: FLWSUPP 164INFIN
Torts — Civil theft — Insurance — Personal injury protection — Attorney’s fees — Medical providers who were sued by insurer for civil theft, unjust enrichment, conversion and fraud seeking award of attorney’s fees following insurer’s voluntary dismissal of complaint without prejudice — Because voluntary dismissal without prejudice does not constitute adjudication on merits, providers are not entitled to award of attorney’s fees under section 627.428 — No merit to claim that section 627.428 is applicable because providers were allowed to keep money they were paid by insurer — Claim for fees under section 772.11 also fails where there is nothing in record to support finding that underlying claims were without substantial factual or legal support
AFFIRMED IN PART, REVERSED IN PART. 35 Fla. L. Weekly D2869a.
INFINITY AUTO INSURANCE COMPANY, f/k/a LEADER INSURANCE COMPANY, Plaintiff, v. PEREZ PERSONAL INJURY CLINIC, INC., YOANDY PEREZ, AND RAUL F. NODAL, M.D., Defendants. Circuit Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 07-012482, Div. B. February 5, 2009. Charlene E. Honeywell, Judge. Counsel: Kimberly P. Simoes. Crystal L. Eiffert. Steven R. Robinson. Elizabeth E. Andrews, Andrews and Manno, P.A., Tampa.
ORDER ON CO-DEFENDANT PEREZ PERSONAL INJURY CLINIC, INC’S MOTION TO DETERMINE ENTITLEMENT TO ATTORNEY’S FEES AND MOTION TO TAX ATTORNEY’S FEES AND COSTS AND ORDER ON CO-DEFENDANT RAUL F.NODAL, M.D.’S MOTION FOR ATTORNEY FEES AND MOTION TO DETERMINE ENTITLEMENT TO ATTORNEY FEES
THIS CAUSE having come before the Court for consideration on October 13, 2008, and the Court having heard arguments of counsel, reviewed the pleadings, motions and evidence before the Court and being otherwise fully advised in the premises, it is hereby
CONSIDERED, ORDERED AND ADJUDGED as follows:
1. Co-Defendant Perez Personal Injury Clinic, Inc.’s Motion to Determine Entitlement to Attorney’s Fees and Motion to Tax Attorney’s Fees and Costs is denied.
2. Co-Defendant Raul F. Nodal, M.D.’s Motion for Attorney Fees and Motion to Determine Entitlement to Attorney Fees is denied.
Findings of Fact
3. On or about August 20, 2007, Plaintiff Infinity Auto Insurance Company, f/k/a Leader Insurance Company, filed a ten count Complaint against three Defendants, which included Perez Personal Injury Clinic, Inc. and Raul F. Nodal, M.D. Counts one through four named Co-Defendant Perez Personal Injury Clinic, Inc. as a Defendant, and sought recovery based on civil theft (Florida Statute §772.11), unjust enrichment, conversion, and fraud. Counts nine and ten named Co-Defendant Raul Nodal, M.D. as a Defendant, and sought recovery based on civil theft (Florida Statute §772.11) and fraud.
4. On February 25, 2008, Co-Defendant Perez Personal Injury Clinic, Inc.’s Motion to Dismiss, or in the alternative, Motion for More Definite Statement and Co-Defendant Raul F. Nodal’s Motion to Dismiss or, in the alternative, Motion for More Definite Statement and Motion for Attorney Fees and Costs were heard and granted. Plaintiff was required to amend its Complaint to plead ultimate facts outside of Florida Statute §627.736.
5. On or about April 21, 2008, Plaintiff filed its Amended Complaint. Counts one through four again named Co-Defendant Perez Personal Injury Clinic, Inc. as a Defendant, and sought recovery based on civil theft (Florida Statute §772.11), unjust enrichment, conversion, and fraud. Counts nine and ten again named Co-Defendant Raul F. Nodal, M.D. as a Defendant, and sought recovery based on civil theft (Florida Statute §772.11) and fraud.
6. On or about July 3, 2008, Plaintiff filed a Notice of Voluntary Dismissal without Prejudice as to its Amended Complaint.
7. On or about July 7, 2008, Co-Defendant Raul F. Nodal filed a Motion for Attorney Fees and Motion to Determine Entitlement to Attorney Fees. The Motion alleged that he was entitled to an award of attorney fees pursuant to Florida Statutes §§627.736, 627.428, and 772.11.
8. On or about July 15, 2008, Co-Defendant Perez Personal Injury Clinic, Inc. filed its Motion to Determine Entitlement to Attorney’s Fees and Motion to Tax Attorney’s Fees and Costs. Its Motion also alleged entitlement to an award of attorney’s fees pursuant to Florida Statutes §§627.736, 627.428, and 772.11.
Findings of Law
9. It is the moving party who bears the burden with regard to its motion. The award of attorney’s fees is in derogation of common law, and statutes awarding attorney’s fees are to be strictly construed.
10. Florida Statute §627.428 provides in pertinent part:
(1) 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. . .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 recovery is had. . . .
11. In O.A.G. Corp. v. Britamco Underwriters, 707 So.2d 785 (Fla. 3d DCA 1998), the Third District Court of Appeal held that an insurer’s dismissal without prejudice did not constitute an adjudication on the merits, and therefore, there was no prevailing party for purposes of an award of attorney’s fees pursuant to Florida Statute §627.428.
12. Co-Defendants’ contentions that Wollard v. Lloyd’s and Companies of Lloyd’s, 439 So.2d 217 (Fla. 1983) is applicable, thus providing for the recovery of attorney’s fees, is without merit. In Wollard, an insurer agreed to settle a disputed claim. Here, there was no agreement to settle, and the Plaintiff dismissed its case without prejudice. A dismissal without prejudice is not an adjudication on the merits.
13. There also is no merit to Co-Defendants’ argument that they have been allowed to keep the money that they were paid by Plaintiff, thus triggering the applicability of Florida Statute §627.428.
14. Florida Statute §627.428 requires the rendition of a judgment or decree, which did not occur here. As such, there can be no recovery of attorney’s fees pursuant to Florida Statute §627.428.
15. Florida Statute §772.11 provides in pertinent part:
(1) . . .The defendant is entitled to recover reasonable attorney’s fees and court costs in the trial and appellate courts upon a finding that the claimant raised a claim that was without substantial fact or legal support. . . .
16. There is nothing in the record to date upon which a finding can be made that the underlying claims filed by the Plaintiff were without substantial fact or legal support. Co-Defendants’ argument that the economic loss rule prohibits the claim is without merit in that the Supreme Court of Florida in Indemnity Insurance Company of North America v. American Aviation, Inc., 891 So.2d 532 (Fla. 2004), held that intentional torts, such as those alleged here, are not barred by the economic loss rule.
17. Florida Statute §772.11 requires a finding that the claims were without substantial fact or legal support, which cannot be done here. As such, there can be no recovery of attorney’s fees and costs pursuant to Florida Statute §772.11.
