19 Fla. L. Weekly Supp. 1006a
Online Reference: FLWSUPP 1912MGAInsurance — Personal injury protection — Attorney’s fees — Appellate — Prevailing insured is not entitled to award of appellate attorney’s fees under section 627.428 where action was for declaratory judgment as to coverage and did not seek money damages
MGA INSURANCE COMPANY INC., Appellant, vs. STEVEN K. MASSAGEE, Appellee. Circuit Court, 18th Judicial Circuit (Appellate) in and for Seminole County. Case No. 10-39AP. L.C. Case No. 08-CC-1370. August 31, 2012.
ORDER DENYING APPELLEE’S MOTIONTO TAX APPELLATE ATTORNEY FEESAND COSTS ON REHEARING
(ALVA, Judge.) THIS CAUSE comes before the Court on Appellee’s “Motion for Rehearing,” filed on June 21, 2012. Having reviewed the motion, the response, the supplemental authority of both parties, and the case file, and being fully advised in the premises, the Court finds as follows:
The record reflects that on June 7, 2012, Senior Judge Rom Powell issued a final opinion in this matter in which the Appellee was the prevailing party.1 As part of the opinion, Judge Powell denied both parties’ motions for attorney’s fees. The Appellee filed a motion to disqualify/recuse appellate judge and a motion seeking rehearing of the denial of his motion to tax appellate attorney fees and costs. In response to the motion to disqualify, Judge Powell recused himself. As neither party has sought rehearing of Judge Powell’s opinion, the only matter before this Court is Appellee’s motion for rehearing of the denial of attorney’s fees.
The Appellee is seeking attorney’s fees pursuant to Fla. Stat. § 627.428(1), which provides that “[u]pon the rendition of a judgment . . . against an insurer and in favor of an insured” the appellate court shall award to the insured a reasonable fee “for the insured’s . . . attorney prosecuting the suit in which the recovery is had.” In support of his motion, the Appellee ignores binding authority from the Fifth District Court of Appeal, instead relying upon cases from other districts. In Progressive Am. Ins. Co. v. Rural/Metro Corp. of Florida, 994 So. 2d 1202 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D2649a], the Fifth District held that a party is not entitled to attorney’s fees pursuant to Fla. Stat. § 627.428 when there is no recovery of insurance proceeds. Id. at 1209. “[B]ecause insurance proceeds were not at issue and because RMA was not entitled to recover any wrongfully withheld payment, section 627.428 does not apply.” Id. (emphasis added), Furthermore, the Appellee cannot have it both ways. He argued with regards to the merits of this appeal that the provisions of Fla. Stat. § 627.736(11) are inapplicable to his case because he was not seeking monetary damages, but now he seeks to recover attorney’s fees pursuant to Fla. Stat. § 627.428 when the Fifth District Court of Appeal has clearly held that a party is not entitled to such recovery when insurance proceeds are not at issue. Therefore, Appellee has failed to demonstrate an entitlement to the relief requested.
Accordingly, it is
ORDERED AND ADJUDGED that Appellee’s motion is DENIED on rehearing.
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1Judge Powell held pursuant to Bristol West Ins, Co. v. MD Readers, Inc., 52 So. 3d 48, 51 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2832a], that the pre-suit demand letter requirement of Fla. Stat. § 627.736 does not apply when the suit is for a declaratory judgment as to coverage and does not seek money damages.
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