16 Fla. L. Weekly Supp. 705b
Online Reference: FLWSUPP 168RUMBO
Insurance — Personal injury protection — Attorney’s fees — No abuse of discretion in awarding attorney’s fees to medical provider for time spent litigating motion to disqualify provider’s counsel from participating in fee hearing — Defense of motion was litigation over entitlement to fees
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. MANUEL FRADE, M.D. P.A., a/a/o Nelida Rumbo, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 07-31056 (05). L.T. Case No. 07-5969 (52). April 24, 2009. Counsel: Ivy R. Ginsberg, Coral Gables. Todd A. Landau and Michael D. Leader, Leader, Leader & Landau, P.L., Fort Lauderdale, for Appellee.
OPINION
(RICHARD EADE, J.) THIS CAUSE is before the Court upon appeal from a county court order granting attorney’s fees to Appellee, Manuel Frade. The Court having considered the parties’ briefs, applicable law, and otherwise being fully advised in the premises finds:
Appellee, Manuel Frade, filed a complaint to recover PIP benefits on April 13, 2007. Appellant, United Automobile Insurance Company (“United”), filed a motion for entry of final judgment. United sent payment of the benefits initially on May 6, 2007 and then re-sent it to the correct payee on or about May 23, 2007. Thereafter, United filed a motion to disqualify Appellee’s attorney, Todd Landau, Esq. and the Law offices of Leader, Leader, and Landau, P.L. on May 30, 2007.
A hearing was held in the lower court on October 16, 2007. The issue in dispute was whether Appellee should be paid attorney’s fees for time spent litigating the motion to disqualify. At the hearing, Appellee’s counsel testified that the motion to disqualify questioned their entitlement to attorney’s fees because it sought to prevent them from participating in a fee hearing. Whereas, United claimed that they acquiesced to attorney’s fees when they filed the confession of judgment. However, they are not liable for attorney’s fees for any post judgment motions. The trial court disagreed and awarded attorney’s fees to Appellee.
The standard of review for an award of attorney’s fees is “abuse of discretion.” Bryan & Sons Corp. v. Klefstad, 265 So.2d 382 (Fla. 4th DCA 1972). “Where the trial court is authorized to award attorneys’ fees, such award being within the sound discretion of the court, the fees will not be disturbed on appeal in the absence of a clear showing of an abuse of that discretion. Id. at 385.
The Florida Supreme Court has held that attorney’s fees may be awarded for litigating entitlement to fees but not for time expended litigating the amount of fees. See State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830 (Fla. 1993).
In the present case, time expended by Appellee in pursuit of fees is compensable because there was litigation over the issue of entitlement. In State Farm Mutual Auto. Ins. Co. v. Diane G. Gurney, 12 Fla. L. Weekly Supp. 700a (9th Jud. Cir. App. Ct. March 30, 2005), the court held that “Florida courts have recognized that when a party fails to acquiesce to entitlement, the moving party is entitled to recover all fees, including those fees with post-trial discovery.” This Court finds that the trial court did not abuse its discretion. Accordingly, it is
ORDERED AND ADJUDGED that the trial court is affirmed.
