17 Fla. L. Weekly Supp. 83a
Online Reference: FLWSUPP 1702FIG2Insurance — Personal injury protection — Discovery — Depositions — Appeals — Certiorari challenge to order compelling deposition of adjuster is moot due to entry of summary judgment in favor of medical provider on issue of reasonableness, relatedness and necessity of treatment — Attorney’s fees — Appellate — Motion for appellate fees filed after reply brief was filed was untimely
UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. ISOT MEDICAL CENTER, CORP., a/a/o Estildo Rey Figueroa, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-103 AP. L.T. Case No. 08-04711 SP 26. December 23, 2009. An Appeal from the County Court of the Eleventh Judicial Circuit of Florida in and for Miami-Dade County, Robin Faber, Judge. Counsel: Lara J. Edelstein, United Automobile Insurance Company, Office of General Counsel for United Automobile Insurance Company, for Petitioner. Zachary A. Hicks, Samole, Berger & Hicks, P.A., for Respondent.
(Before HOGAN SCOLA, BUTCHKO and DIAZ, JJ.)
(HOGAN SCOLA, Judge.) We dismiss Petitioner’s Writ of Certiorari as moot. Petitioner (United Automobile Insurance Company) seeks a writ of certiorari for a claim filed by Respondent (Isot Medical Center Corporation a/a/o Estildo Rey Figueroa) arising out of a personal injury protection suit for unpaid benefits. Petitioner disputes the trial court’s order compelling Petitioner’s Tampa based adjuster to appear in Miami-Dade County for a deposition. In its Motion to Compel Defendant’s Appearance at Deposition in Miami-Dade County, Petitioner requested that the court “compel Defendants to produce a litigation adjuster in Miami-Dade County.” The court granted Petitioner’s Motion and the adjuster was required to appear in Miami-Dade County for Deposition. On June 18, 2009 Petitioner notified the court that the dispute between the parties had been determined by summary judgment as to reasonableness, relatedness, and medical necessity on June 9, 2009, in favor of Respondent. Thus, the dispute as to this deposition has since been resolved and is moot with the trial court’s determination of summary judgment as to reasonableness, relatedness, and medical necessity. The entry of final summary judgment in favor of the Plaintiff/Respondent is still pending. Accordingly, we dismiss this writ of certiorari.
As to Appellate Attorney’s fees, the motion is denied. The Petitioner filed its Reply to Response to Petition for Writ of Certiorari on April 2, 2009. The appellate record indicates that Respondent filed its Motion for Attorney’s Fees on July 21, 2009. The Motion was filed after the Reply was filed. A motion for attorneys’ fees “may be served not later than the time for service of the reply brief . . . .” Fla. R. App. P. 9.400(b) (Attorneys’ fees). When a motion for attorney fees on appeal is not served and filed until after the time for service of the reply brief has expired, the motion is not timely and must be denied. Joseph Land & Co. v. Green, 486 So. 2d 87 (Fla. 1st DCA 1986); Lobel v. Southgate Condo. Assoc., 436 So. 2d 1270 (Fla. 4th DCA 1983). Accordingly, we find that the filing of the Motion for Attorney’s Fees was untimely and Respondent is barred from receiving attorney’s fees.
