16 Fla. L. Weekly Supp. 628a
Online Reference: FLWSUPP 167BROW2
Insurance — Personal injury protection — Coverage — Error to enter summary judgment in favor of medical provider where there remain disputed issues of material fact as to claimant’s relationship to and residency with named insured — Attorney’s fees award must also be reversed
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. ASSOCIATES IN TRAUMA, INC., an assignee of Thadeus Brown, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case Nos. 07-22212 CACE (08), 08-340 CACE (18). L.C. Case No. 05-4323 CONO (70). May 5, 2009. Counsel: Thomas L. Hunker, United Automobile Insurance/Trial Division, Coral Gables. Robert Stein, Young & Adams, Boca Raton.
ORDER AND OPINION
(RONALD J. ROTHSCHILD, J.) THIS CAUSE comes before the Court upon Appellant, United Automobile Insurance Company’s appeal of the Order Granting Summary Judgment granted on July 11, 2007, and the Final Judgment of Attorney’s Fees entered on November 26, 2007. Having reviewed the appellate file, applicable law, and being otherwise fully advised in the premises, the Court hereby decides as follows:
On or about October 10, 2004, a motor vehicle struck Thadeus Brown while he was riding his bicycle. Mr. Brown’s mother, Yvette Atwell, executed an assignment of benefits to the Appellee, Associates In Trauma, Inc., under her PIP policy with the Appellant, United Automobile Insurance Company (hereinafter “UAI”). On November 4, 2004 Ms. Atwell submitted an application for no fault benefits on behalf of her son. On July 18, 2005, Appellee sent a demand letter to UAI demanding payment rendered to Mr. Brown. UAI denied payment, claiming that Mr. Brown was not covered under Ms. Brown’s policy. The trial court granted summary judgment in Appellee’s favor, awarding damages of $4,095.20 plus interest and awarding attorney’s fees in the amount of $14,495.00 plus interest.
The applicable standard of review for orders granting summary judgment is de novo. 5th Avenue Real Estate Dev., Inc. v. Aeacus Real Estate Ltd., 876 So.2d 1220 (Fla. 4th DCA 2004). Summary judgment is appropriate only where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000).
The moving party has the burden of proving the nonexistence of a genuine issue of material fact. Holt v. Talcott, 191 So.2d 40 (Fla. 1966). “The evidence, and all of the permissible inferences drawn therefrom must be cast in a light most favorable to the non-moving party.” Ryan v. Mazda Corp., 356 So.2d 23, 24 (Fla. 4th DCA 1978).
In insurance cases, residency of household is a mixed question of law and fact “to be determined based on the facts of each individual case.” State Farm Mut. Ins. Co. v. Colon, 880 So.2d 782 (Fla. 2nd DCA 2004).
At Mr. Brown’s Examination Under Oath (“EUO”), he stated he lived with several different people, including “Mary Atwell.” The Appellant’s litigation adjustor, Ryan Peeples testified that it was unclear from Mr. Brown’s EUO whether Yvette Atwell and Mary Atwell were the same person, and stated that he would like to investigate the matter further. It remains unclear from the record whether “Mary Atwell” and “Yvette Atwell” are the same person, whether Yvette Atwell is Mr. Brown’s mother, or whether Yvette Atwell lived with Mr. Brown at the time of the accident. Therefore, there are genuine issues of material fact that remain undetermined; and thus, cannot permit summary disposition of the case.
Further, the trial court awarded attorney’s fees based on Florida Statute § 627.428(1), which allows a court to award an insured attorney’s fees in cases where an insured prevails in an underlying case. However, where the fee request is granted pursuant to § 627.428(1), and the underlying case the attorney’s fee award was based on is reversed, the judgment awarding fees must also be reversed. Hart v. Bankers Fire and Casualty Co., 320 So.2d 485 (Fla. 4th DCA 1975). Florida Courts have consistently held that “where an award of attorney’s fees is dependent on the judgment obtained, the reversal of the underlying judgment necessitates the reversal of the underlying fee award.” City of Hollywood v. Witt, 939 So.2d 315, 319 (Fla. 4th DCA 2006). Therefore, the award of attorney’s fees must also be reversed.
Accordingly, it is hereby,
ORDERED and ADJUDGED that the trial court’s order granting summary judgment in favor of Appellee, Associates In Trauma, Inc., is REVERSED and REMANDED for further proceedings.
It is further, ORDERED and ADJUDGED that the trial court’s order on attorney’s fees and costs is REVERSED and REMANDED for further proceedings.
