19 Fla. L. Weekly Supp. 802c
Online Reference: FLWSUPP 1910FMERInsurance — Personal injury protection — Attorney’s fees — Appellate — Where insurer’s appeal was dismissed without decision on merits, medical provider is entitled to award of appellate attorney’s fees
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. EMERGENCY PHYSICIANS OF CENTRAL FLORIDA, a/a/o Frank Mercatante, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. 2012-CV-17. L.C. Case No. 2005-SC-7291-O. June 14, 2012.ORDER GRANTING APPELLEE’S MOTIONTO TAX ATTORNEY FEES
THIS MATTER came before the Court for consideration of Appellee’s “Motion to Tax Attorney Fees and Costs,” filed on May 23, 2012. The Court finds as follows:
Appellee moves for an award of attorney fees and costs in the event that the Motion to Dismiss is granted. Appellee argues that the prevailing party clause in section 627.428, Florida Statutes, includes cases where an insurer files an appeal and the appeal is later dismissed without a decision on the merits. Arango v. United Auto. Ins. Co., 901 So. 2d 320 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D1129a]. Since Appellee’s Motion to Dismiss was granted, Appellee is the prevailing party and entitled to attorney fees. See § 627.428, Fla. Stat. (2009); Id.
Based on the foregoing, it is hereby ORDERED AND ADJUDGED that Appellee’s Motion to Tax Attorney Fees is GRANTED. The assessment of those fees is remanded to the trial court. Appellee’s motion for appellate costs should be filed with the trial court. Fla. R. App. P. 9.400(a). (O’KANE, WHITEHEAD, and BRONSON, JJ.)
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