17 Fla. L. Weekly Supp. 264a
Online Reference: FLWSUPP 1704JOASInsurance — Personal injury protection — Attorney’s fees — Timeliness of motion — Thirty-day time requirement under rule 1.525 does not apply where trial court’s order memorializing parties’ stipulation to reasonable attorney’s fees has already determined medical provider’s entitlement to fees and costs
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. USA NEURO, THERAPY & REHAB GROUP, INC., A/A/O JOSNEL JOASSANT, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 08-63393 (26). L.T. Case No. 06-17032(52). December 14, 2009. Counsel: Lara J. Edelstein. Paul S. Adams.
OPINION
(GREENE, J.) THIS CAUSE comes before the Court, sitting in its appellate capacity, upon the appeal by Appellant, United Automobile Insurance Company, of the trial court’s order awarding Appellee attorneys’ fees and costs following a final judgment in favor of Appellee.
On October 30, 2006, Appellee filed a complaint to recover personal injury protection (PIP) benefits against Appellant for medical service rendered to the insured, Josnel Joassant. In February 2008 the parties settled the case. The record contains Appellant’s February 5, 2008 letter that was submitted to the trial court by both parties. The letter, addressed to Appellee’s counsel, confirmed Appellant’s agreement to pay the PIP benefits, including interest, and stipulated to reasonable attorneys’ fees and costs. Notably, no final judgment, notice of voluntary dismissal or order was entered on the parties’ settlement.
Later, on June 4, 2008, Appellee filed a motion for attorney’s fees and costs. At the hearing on Appellee’s motion for fees and costs, despite the stipulation to reasonable attorneys’ fees and costs, Appellant nevertheless argued that Appellee was not entitled to attorneys’ fees because Appellee filed its motion more than 30 days after the Appellant paid Appellee’s PIP claim, contrary to Florida Rule of Civil Procedure 1.525. Because the issue of entitlement to attorneys’ fees was raised for the first time without adequate notice to Appellee, the trial court continued the matter.
Thereafter, on August 29, 2008, Appellee filed its motion for entry of final judgment. As a result, on September 4, 2008, the trial court entered a final judgment in favor of the Appellee and, based upon Appellant’s February 5, 2008 letter stipulating to attorneys’ fees, also determined Appellee’s entitlement to attorneys’ fees and cost and reserved jurisdiction to resolve the amount. In turn, on October 2, 2008, Appellee filed its second motion attorneys’ fees and costs.
Subsequently, on October 31, 2008, Appellant moved to vacate the trial court’s September 4, 2008 final judgment. In its motion to vacate, Appellant suggested, somewhat equivocally, that the final judgment in which the trial court found Appellee’s entitlement to attorney’s fees and costs was void because Appellee failed to file its motion for attorneys’ fees within 30 days of, either February 5, 2008, the date Appellant agreed to settle the PIP benefits in the amount of $8,292.63, or February 13, 2008, the date Appellee deposited the checks paid by Appellant to settle the case.
On November 3, 2008, the trial court heard Appellee’s motion for attorneys’ fees and costs and considered and denied Appellant’s motion vacate the final judgment. Accordingly, the trial court rendered its order awarding Appellee attorneys’ fees and costs on November 17, 2008. Appellant’s timely appeal followed.
Whether a motion for attorneys’ fees and costs is barred by Florida Rule of Civil Procedure 1.525 is a legal determination subject to de novo review. See Gosselin v. Gosselin, 869 So.2d 667, 668 (Fla. 4th DCA 2004)(citing Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla. 2000), “[b]ecause the trial court’s determination that the Wife’s amended motion for attorney’s fees was barred by Florida Rule of Civil Procedure 1.525 is a legal determination, we review it de novo.”).
On appeal, as it did below, Appellant argues that the trial court erred in awarding Appellee attorneys’ fees and costs upon Appellee’s untimely motion for attorneys’ fees and costs served more than 30 days after Appellant paid the PIP benefits. Appellant again argues that the payment of the PIP benefits (which purportedly acts as the equivalent of a confession of judgment or a verdict), and not the actual entry of a trial court’s order, decree or judgment, triggers an insured’s entitlement to attorneys’ fees and costs which requires insured to serve its motion for fees and cost within 30 days of such payment under rule 1.525. Appellant further argues that, because Appellee failed to timely file its motion under rule 1.525 within 30 days of the payment of PIP benefits in February 2008, the trial court’s September 4, 2008 final judgment which determined Appellee’s entitlement to attorneys’ fees and costs, is void.
On the record before this court, there is no question that the parties’ settlement agreement, including the stipulation concerning attorneys’ fees and costs was memorialized in the trial court’s September 4, 2008 final judgment. Furthermore, the final judgment found entitlement to attorney’s fees. The issue before the Court is not whether the motion for attorney’s fees was timely filed but rather whether Rule 1.525 applies to the order on appeal.
While this matter was pending on appeal the Florida Supreme Court decided Amerus Life Ins. Co. v. Lait, 2 So. 3d 203 (Fla. 2009), a case which the Court believe controls here. In Lait, the Florida Supreme Court held that Florida Rule of Civil Procedure 1.525 does not apply when the trial court’s order, like the judgment below, has determined the prevailing parties’ entitlement to attorneys’ fees and costs. Id. at 207-08. Under the authority of Lait, because the trial court’s September 4, 2008 final judgment found Appellee’s entitlement to attorneys’ fees and costs, the Court finds that rule 1.525 does not apply and the award of fees and costs was proper.
Accordingly, it is hereby
ORDER AND ADJUDGED that the trial court’s order awarding Appellee attorneys’ fees and costs is AFFIRMED. Appellee’s motion for appellate attorneys’ fees and costs is GRANTED and remanded for a determination of the amount to be awarded.
