19 Fla. L. Weekly Supp. 865a
Online Reference: FLWSUPP 1910HODAInsurance — Attorney’s fees — Medical provider is not entitled to award of attorney’s fees as prevailing party in action against insurer where provider recovered exact amount of insurer’s presuit offer after trial
MARSHALL BRONSTEIN, D.C., a/a/o MARIA HODATE, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 08-15929 CC 23 05. September 16, 2011. Charles Johnson, Judge. Counsel: Kenneth Dorchak, for Plaintiff. Norma Kassner, for Defendant.
ORDER DENYING PLAINTIFF’S MOTIONFOR ATTORNEY’S FEES
THIS CAUSE having come before the Court on August 5, 2011, upon Plaintiff’s motion for attorney’s fees, and being otherwise fully advised in the premises, it is hereby ORDERED and ADJUDGED that:
1. Plaintiff’s motion for attorney’s fees and costs is DENIED.
2. In this case, Defendant offered $1,816.00 in full and final settlement of the benefits sought by Plaintiff. This figure signified 80% of the amount billed for the treatment predating the insured’s missed independent medical examination (IME). Plaintiff rejected Defendant’s offer and filed suit. At trial, the jury found that the insured unreasonably refused to attend the IME. Therefore, judgment was entered for Plaintiff in the amount of $1,816 plus interest.
3. Thus, Plaintiff is not entitled to attorney’s fees under section 627.428, Florida Statutes, because Plaintiff failed to recover a judgment greater than the amount Defendant offered in settlement prior to the filing of this lawsuit. See Danis Industries Corp. v. Ground Improvement Techniques, Inc., 645 So. 2d 420 (Fla. 1994); C.U. Associates, Inc. v. R.B. Grove, Inc., 472 So. 2d 1177 (Fla. 1985); Greenough v. Aetna Cas. & Surety Comp., 449 So. 2d 1001 (Fla. 4th DCA 1984); Westinghouse Elect. Corp. v. Shafer & Miller, Inc., 515 So. 2d 248 (Fla. 3d DCA 1987); Union American Ins. Co. v. Ismael Lopez, 6 Fla. L. Weekly Supp. 72a (Fla. 11th Circuit Appellate 1998).
4. The cases cited by Plaintiff are not applicable because they involve scenarios where the insurer wrongfully withheld benefits which were otherwise due and then paid the benefits only after suit was filed. See Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000) [25 Fla. L. Weekly S1103a]; Dunmore v. Interstate Fire Ins. Co., 301 So. 2d 502 (Fla. 1st DCA 1974).
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