20 Fla. L. Weekly Supp. 433a
Online Reference: FLWSUPP 2004HARPInsurance — Personal injury protection — Attorney’s fees — Prevailing insured — Thirty-day period for filing motion for attorney’s fees was not triggered by insurer’s confession of judgment — Motion to strike plaintiff’s motion for attorney’s fees and costs is denied
MATTHEW HARP, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2011-CC-019041-O. November 16, 2012. Wilfredo Martinez, Judge. Counsel: Glenn Klausman, Altamonte Springs, for Plaintiff. John Morrow and Conroy Simberg, Orlando, for Defendant.
ORDER ON DEFENDANT’S MOTION TOSTRIKE PLAINTIFF’S MOTION FORATTORNEYS’ FEES AND COSTS
Defendant State Farm filed a Motion To Strike the Plaintiff’s request for attorney fees and costs in this personal injury protection litigation matter. The lawsuit in this matter was filed in December 2011. The lawsuit alleged State Farm owed the Plaintiff payment of chiropractic bills and the cost of transportation expenses to and from the chiropractor for services that were in dispute. The lawsuit included an allegation the Plaintiff would be entitled to attorney fees pursuant to Florida Statute 627.428 if the Plaintiff obtained a recovery or judgment.
On January 19, 2012, the Defendant issued payment of the claims for PIP benefits that were the subject of this lawsuit.
On January 24, 2012, Plaintiff’s counsel forwarded to 2arm’s adjuster his time sheets in support of his request for attorney fees.
Defendant’s counsel filed an Answer, Affirmative Defenses, and Demand For Jury Trial dated January 31, 2012. Defendant then filed a “Notice of Withdrawal of Answer and Affirmative Defenses” dated February 2, 2012, which stated, in part, “State Farm has made payment of the disputed bills and agreed to entitlement to a reasonable attorney fee and taxable costs which are the only remaining issues.”
The PIP benefits checks were reissued on February 3, 2012 and cashed on February 9, 2012. The parties communicated through counsel concerning scheduling for hearing the remaining disputed issue of the reasonable amount of Plaintiff’s counsel’s attorney fees. Plaintiff’s counsel filed a “Motion For Entry of Final Judgment and Motion For Attorney Fees and Costs” dated June 27, 2012.
State Farm responded by filing a “Motion To Strike Plaintiff’s Motion For Entry of Final Judgment and Motion For Attorneys’ Fees,” dated July 10, 2012, which is motion before the Court.
State Farm’s motion asserts the Plaintiff is not entitled to attorney fees or costs because the motion for attorney fees and costs was not filed within 30 days of State Farm’s issuance of checks for the chiropractic bills and transportation expenses that were the subject matter of this lawsuit.
State Farm relies upon Rule 1.525, Fla. R. Civ. P., which states:
“Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal, which judgment or notice concludes the action as to that party.”
State Farm argues: “Once State Farm made payment, Plaintiff had thirty days to file their Motion For Attorneys’ Fees.” State Farm cites Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla. 2000) [25 Fla. L. Weekly S1103a] for its position. State Farm argues: “Payment after suit was filed operates as a confession of judgment further entitling a Plaintiff to attorney fees. So, once payment was made, there was a judgment in Plaintiff’s favor entitling him to attorneys’ fees. Plaintiff thereafter had thirty days to file a pleading to comply with the Rules.”
Plaintiff argues the Rules cited by State Farm, Rule 1.525, Fla. R. Civ. P., and Rule 7.175, Small Claims Rules, which tracks Rule 1.525, requires “the filing of the judgment” to trigger the 30 day requirement and no judgment has been filed in this case. No Order of any kind has been filed by the Court in this case.
Plaintiff argues a confession of judgment, as noted in Ivey, triggers the Plaintiff’s entitlement to attorney fees, but does not trigger the 30 day requirement of Rule 1.525.
Plaintiff also cites State Farm’s pleading dated February 2, 2012, stating State Farm “agreed to entitlement to a reasonable attorney fee and taxable costs which are the only remaining issues.” Plaintiff argues there is no prejudice or surprise to State Farm as to the Plaintiff’s request for attorney fees.
In support of the Plaintiff’s position the Plaintiff argues there is no controlling precedent for State Farm’s assertion that Rule 1.525 can be triggered by a confession of judgment in lieu of the filing of a judgment. The Plaintiff cites the following cases in support of the Plaintiff’s position a final judgment is necessary to trigger the 30 day requirement of Rule 1.525: Svoboda v. Bayer Corporation, 946 So.2d 1204, Fla. 5th DCA 2006 [32 Fla. L. Weekly D143b] which reversed a trial court denial of attorney fees pursuant to Rule 1.525 as the trial court mistakenly ruled Rule 1.525 was triggered by a jury verdict, as opposed to the filing of a judgment on the jury’s verdict; Landing Group of Tampa v. Kifner, 951 So.2d 1014, Fla. 5th DCA 2007 [32 Fla. L. Weekly D783d] which held the filing of a court order affirming an arbitration award is not a “judgment” that triggers the thirty day deadline of Rule 1.525; Paige v. American Security Ins. Co., 987 So.2d 128, Fla. 4th DCA 2008 [33 Fla. L. Weekly D1720b] reversing a trial court denial of attorney fees when the trial court entered an Order confirming an arbitration award and the party requesting attorney fees failed to file the motion for attorney fees within 30 days of that Order. The appellate court held the Order was not a final judgment and therefore did not trigger the 30 day requirement of Rule 1.525.
The Plaintiff also cited Amerus Life Ins. Co. v. Lait, 2 So.3d 203, Fla. 2009 [34 Fla. L. Weekly S49a] which discussed the purpose of Rule 1.525 is to avoid prejudice and unfair surprise to a the losing party by requiring notice the prevailing party will be seeking attorney fees. The Court held:
“Once the trial court determines that the prevailing party is entitled to attorney fees and costs, the losing party is aware that it is required to pay the fees and costs. At that point, the concerns of prejudice and unfair surprise to the losing party are eliminated, thus eliminating the need to apply the thirty-day requirement under rule 1.525.”
The Plaintiff also cited Friedman, as assignee of Marosek v. Progressive Express Ins. Co., 11 FLW Supp 856a, Seminole County Court, 2004.
The Court HEREBY ORDERS the motion of State Farm to strike the Plaintiff’s Motion For Attorneys’ Fees is DENIED.
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