17 Fla. L. Weekly Supp. 772a

Online Reference: FLWSUPP 1709RAMIInsurance — Attorney’s fees — Prejudgment interest — No abuse of discretion in awarding prevailing medical provider prejudgment interest on attorney’s fee award for three-year period during which motion for attorney’s fees was not set for hearing where insurer failed to provide explanation as to why it did not set fee hearing itself rather than wait on provider to do so, and burden of nonpayment of fees is fairly placed on party whose obligation to pay fees has been fixed

UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, v. UNITED DIAGNOSTIC & REHAB/ RADIOLOGY & NEUROLOGY (a/a/o Fernando Ramirez), Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE 08-62216 (18), L.T. Case No. COCE 03-13575 (56). April 6, 2010. Counsel: Lara Edelstein, Office of General Counsel, for Appellant. Matthew D. Bavaro, Bavaro Legal, P.A., for Appellee.

OPINION

(LUZZO, Judge.) This appeal stems from a lawsuit filed by United Radiology (“provider”) against United Automobile Insurance Company (“insurer”). The underlying matter was resolved in favor of the provider by the lower court. The provider timely filed a Motion to Tax Fees and Costs, however, that motion was not set before the lower court for approximately three years. At the fee hearing, the lower court awarded prejudgment interest on the attorney’s fee award for that three-year period. The insurer objected and argued to the lower court that the provider is not entitled to three year’s worth of interest since it was the provider’s attorney that failed to set the hearing for approximately three years. That issue is the subject of this appeal.

The judgment of the lower court is AFFIRMED. First, the insurer failed to provide the lower court or this court with any credible explanation as to why it, through its attorneys, did not set the fee hearing itself. The insurer’s counsel could have set the motion for hearing. Second, this issue has been resolved by the Florida Supreme Court in Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So. 2d 929 (Fla. 1996) [21 Fla. L. Weekly S141a]. The court in that case found that “the burden of nonpayment [of attorney’s fees] is fairly placed on the party whose obligation to pay attorney’s fees has been fixed.” Id. at 931 (emphasis added).

There having been no showing that the lower court abused its discretion in awarding prejudgment interest on the attorney’s fees, the judgment of the lower court is AFFIRMED. Further, the Court grants Appellee’s Motion for Attorney’s Fees for this appeal and remands this matter to the lower court to determine a reasonable fee.