19 Fla. L. Weekly Supp. 75a
Online Reference: FLWSUPP 1902SMITInsurance — Personal injury protection — Attorney’s fees — No error in denying insured’s request for attorney’s fees where insured prevailed in declaratory action determining that PIP coverage existed but no monetary damages were awarded because PIP benefits had been exhausted by workers’ compensation lien
TRUNETTE SMITH, Appellant, vs. P.V. HOLDING CORP., Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 10-6579, Division X. L.C. Case No. 07-13318-CC. July 22, 2011. On review of a final judgment of the County Court for Hillsborough County. Honorable Herb Berkowitz, County Court Judge. Counsel: Michael J. Meksraitis, Tampa, for Appellant. Shawn J. Davis, Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A., Ft. Lauderdale, for Appellee.
(NIELSEN, Judge.) This case is before this court to review an order of the County Court denying Appellant Trunette Smith’s request for attorney’s fees. Ms. Smith prevailed in a declaratory action determining that PIP (personal injury protection) coverage existed for a work-related accident in which she was injured, but the order determining coverage awarded no monetary damages; benefits had been exhausted by a worker’s compensation lien that exceeded available PIP benefits. For this reason, the trial court judge denied her post-judgment request for attorney’s fees. Ms. Smith was, or should have been, aware of the existence of the lien at the time she filed the declaratory action; it was referred to in her worker’s compensation settlement. We agree with the trial court that Ms. Smith is not entitled to an award of attorney’s fees; to do otherwise will result in a proliferation of lawsuits attempting to obtain technical judgments under the PIP statute.
In her appeal, Ms. Smith argues that, whether any benefits were directly payable to her, she received a judgment, and that the reduction of the workers’ compensation lien was an ascertainable benefit she received as a result of having brought the declaratory action. She contends that the judgment entitles her to attorney’s fees in accordance with Florida Statutes. Section 627.428(1), Florida Statutes, provides that:
Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.
At first blush, she would appear to be correct. But Ms. Smith does not appear to have expected payment as a result of her complaint; her complaint did not seek damages, only declaratory relief. Indeed, Ms. Smith wrote in her initial brief that “Appellant did not bring the underlying action to enforce the payment or the providing of a specific benefit under a specific claim.” Initial Brief at p. 13. In so doing, Ms. Smith appears to consider the concepts of coverage and payment to be interchangeable. Notwithstanding the existence of coverage, as to Ms. Smith, the trial court concluded that PIP benefits were exhausted, so no benefits were payable, despite the existence of coverage. This is no different than any other exhaustion-of-benefits dispute in which coverage exists but no benefits remain for the insured to collect.
We are unpersuaded by Ms. Smith’s reliance on Fortune Ins. Co. v. McGhee, 571 So. 2d 546, 549 (Fla. 2d DCA 1990), which she cites for the proposition that she is entitled to benefits to the extent that the third party settlement or judgment was depleted by repayment of the worker’s compensation lien. Ms. Smith didn’t refer to any third party settlement in her statement of the case and facts. In addition, Fortune says that attorney’s fees are recoverable on a pro rata basis when there is any PIP recovery vis a vis a worker’s compensation lien. Fortune is distinguishable from this case because Ms. Smith’s PIP benefit is completely offset by the worker’s compensation lien. Ms. Smith also cites First Floridian Auto & Home Ins. Co. v. Myrick, 969 So.2d 1121 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D2672a] for its holding that an insurer will owe attorneys fees to its insured where coverage is disputed and the insured prevails whether by judgment or a confession of judgment. She contends that the trial court’s reluctant judgment of coverage as opposed to benefits is a legal victory that vests her with entitlement to attorney’s fees. That would be true if the coverage question, answered in the affirmative, also yielded a recovery of benefits, as it did in First Floridian. Here, it did not.
In Travelers Indemnity Ins. Co. v. Meadows MRI, 900 So. 2d 676, 679 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D962c] the court wrote: (“(t)he purpose behind section 627.428 is plainly to place the insured or beneficiary in the place she would have been if the carrier had seasonably paid the claim or benefits without causing the payee to engage counsel and incur obligations for attorney’s fees). After the judgment, Smith’s position remained unchanged from what it was before the suit.
We are not persuaded that the application of PIP benefits in their entirety to the worker’s compensation lien is a benefit to Ms. Smith that entitles her to fees. Ms. Smith has advanced no law to support such an outcome.1 It is therefore ORDERED that the decision of the trial court is AFFIRMED. (LEVENS and COOK, JJ., Concur.)
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1Appellant makes a passing reference to the existence of a third-party settlement in her reply brief. See Appellant’s Reply Brief, p. 8. This may explain Appellant’s reliance upon the Fortune v. McGhee decision in the initial brief. If such a settlement did exist, this Court is aware of a recent decision of the Second District Court of Appeal — Cannino v. Progressive Express Ins. Co., 58 So. 3d 275 (Fla. 2d DCA 2010) [35 Fla. L. Weekly D2866b] — that is potentially applicable to the instant case. The reference to a third-party settlement was not supported by a citation to the record, nor was there any indication that the issue was raised in the trial court, thus, we cannot say the issue was preserved for appellate review. Moreover, Appellant did not, in this appeal, cite this case or in any substantive manner argue the effect of a third-party settlement on the worker’s compensation lien; therefore, we do not apply the Cannino decision to our determination in this case.
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