21 Fla. L. Weekly Supp. 186a
Online Reference: FLWSUPP 2102SOLEInsurance — Personal injury protection — Attorney’s fees — Where insurer initially refused to pay medical bill, then when paying bill late insurer refused to pay interest on late payment, causing medical provider to file suit for past-due interest, insurer is liable for provider’s attorney’s fees irrespective of amount of interest recovered — No merit to arguments that provider is not entitled to attorney’s fees because it could have resolved dispute by contacting insurer rather than filing suit or because amount in dispute is de minimis
MARCOS SOLER, an insured individual by and through his/her assignee, TAMPA BAY IMAGING, LLC, Plaintiff, v. HALLMARK INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Small Claims Division. Case No. 13-CC-009026, Division J. October 23, 2013. Honorable Gaston J. Fernandez, Judge. Counsel: Michael P. Liebgold, FL Legal Group, Tampa, for Plaintiff. Robert Peterson and Chad Guzzo, Masten, Peterson & Denbo, LLC, Tampa, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TOSTRIKE PLAINTIFF’S REQUEST FOR ATTORNEY’S FEES
THIS CAUSE came before the Court for hearing on October 7, 2013 upon Defendant’s Motion to Strike Plaintiff’s Request for Attorney’s Fees, and the Court having been otherwise duly advised in the premises, it is hereupon, ORDERED AND ADJUDGED:
1. The Plaintiff timely submitted its charges for its 7.13.10 date of service to the Defendant per Fla. Stat. 627.736(5)(c), i.e. within 35 days of said dos.
2. The Defendant failed to pay the Plaintiff’s aforementioned charges within 30 days of receipt of same as is required by Fla. Stat. 627.736(4)(b), and thus became overdue.
3. The Defendant ultimately late-paid the aforementioned charges on 12.10.10.
4. The Defendant failed to pay interest on its overdue payment as is required by Fla. Stat. 627.736(4)(d).
5. The Plaintiff’s PIP pre-suit demand, which also demanded interest, crossed in the mail with Defendant’s late payment of benefits.
6. The Plaintiff filed this suit for past due statutory interest on the Defendant PIP insurer’s late-payment of benefits.
7. The Defendant finally admits owing said interest, and instead now attempts to have this Court strike the Plaintiff’s request for its attorney’s fees incurred in bringing and prosecuting this action in the Defendant’s subject Motion to Strike Plaintiff’s Request for Attorney’s Fees.
8. The Defendant claims that the Plaintiff merely had to contact the Defendant rather than file suit to obtain its past-due interest. However, the Defendant’s position has been squarely rejected by the Third DCA in the PIP context. See Ramirez v. United Automobile Insurance Company, 2011 WL 3586137 (Fla. 3rd DCA 2011) [36 Fla. L. Weekly D1823a]. (“to contend that, having sought judicial, rather than telephonic relief, by filing this completely appropriate petition, the plaintiff is out of luck. . . .To put it mildly, we disagree.” Emphasis added. Ramirez was an appeal of the Circuit Court appellate’s denial of attorneys’ fees with a concomitant affirmance of a money judgment and it quashed that denial of attorneys’ fees. However, as detailed above, the Plaintiff even served the Defendant with a demand that included interest, even though it argued that a PIP pre-suit demand is not required for interest, just for benefits. It is uncontroverted that the Defendant flatly ignored that demand and stuck to its payment of benefits-only.
9. In addition, Ramirez rejected that PIP insurer’s argument that the amount at issue was de minimus, similar to the Defendant PIP insurer’s argument here.
As was said with respect to a similar contention in Kneale v. Jay Ben, Inc., 527 So.2d 917, 918 n. 1 (Fla. 3d DCA 1988):
[The respondent’s] response to the petition for certiorari here does not even seek to justify the decisions below under the applicable law. Instead, it seems to imply that the small amount [$50.07] involved does not justify our consideration of the case. We reject any such idea. There is nothing in the stated requirements for the invocation of our certiorari jurisdiction — or any other part of our duties — which turns on the amount involved. We do not feel put upon to be required to consider any case, however apparently insignificant, in which our jurisdiction, as here, has been properly invoked. Indeed, it is the [respondent’s] position which is utterly devoid of merit, has caused whatever unnecessary expenditure of judicial resources this case involves. Emphasis added. FN1.
10. Additionally, the Fourth DCA, citing Ramirez, held that in a breach of contract action against an insurer when a judgment is for the insured but $0.00 in damages are recovered, a fee award under Fla. Stat. 627.428 is required. Alberto Rodriguez v. Government Employees Insurance Company, 80 So. 3d 1042 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D2788a]. “The failure of the county court judge to award attorneys’ fees ‘is directly contrary to the mandatory, non-discretionary requirements of law as provided by section 627.428, Florida Statutes. . . .’ ” Id. at 1044. Such a denial of a fee award against an insurer “is a clear departure from the essential requirements of law which resulted in a miscarriage of justice. The county court clearly erred in failing to award attorneys’ fees under section 627.428 based on the misconception that Rodriguez had to recover a money judgment. . . .” Id. at 1045. See also, the Florida Supreme Court’s opinion in the PIP case of Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla. 2000) [25 Fla. L. Weekly S1103a] discussed more fully below, in which the Court stated “Florida law is clear that in “any dispute” which leads to judgment against the insurer and in favor of the insured, attorney’s fees shall be awarded to the insured.” Id. at 684.
11. Fla. Stat. 627.428, entitled “Attorney’s fee” states:
(1) 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 trial 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.
(2) As to suits based on claims arising under life insurance policies or annuity contracts, no such attorney’s fee shall be allowed if such suit was commenced prior to expiration of 60 days after proof of the claim was duly filed with the insurer.
(3) When so awarded, compensation or fees of the attorney shall be included in the judgment or decree rendered in the case. Emphasis added.
12. Fla. Stat. 627.736(8), entitled Applicability of provision regulating attorney’s fees states “With respect to any dispute under the provisions of ss. 627.730-627.7405 between the insured and the insurer, or between an assignee of an insured’s rights and the insurer, the provisions of s. 627.428 shall apply, except as provided in subsections (10) and (15).” Emphasis in bold provided. Section 10 refers to the demand letter requirement for seeking benefits and section 15 refers to the mandate that all claims should be brought in a single action. The statute is clear that attorney’s fees liability potentially attaches in ANY dispute. . . .once again, no statutory minimum for the underlying dispute is listed in this clearly-worded section of the PIP statute.
13. As can be seen above, and as recognized in Ivey, Ramirez and Rodriguez, the attorney’s fee statute does not have a minimum dollar amount listed within it, and the legislature could have inserted such a minimum dollar amount, but didn’t. This Court is not now free, as the Defendant suggests, to disregard the plain meaning of the clearly-worded statutory language and create a new subpart to the attorney’s fee statute against insurance companies.
14. In the PIP context, the context in which this suit arises, Florida’s Supreme Court has previously addressed the issue advocated by the Defendant, that somehow because the Defendant allegedly made an error that it should be now permitted to correct that error without the penalty of concomitant attorney’s fees even though the Plaintiff resorted to litigation; when the Court held that it makes no difference whether the lack of payment occurs purposefully or through mistake. Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla. 2000) [25 Fla. L. Weekly S1103a]. In Ivey, that PIP insurer also allegedly failed to make full payment due to an error and argued that it therefore should not be subject to the attorney’s fee penalty provision of the PIP statute Fla. Sta. 627.428 cited above. In Ivey, like here, “[o]nly after a legal action was filed. . .did Allstate face the reality that its assumption was erroneous. The district court’s opinion would essentially eliminate the insurer’s burden of investigating a claim by holding that “because Allstate did not pay the entire claim due to an error in the doctor’s bill, its failure to pay said claim does not rise to the level of ‘wrongful’ which would entitle Ms. Ivey to an award of attorney’s fees.” Id. at 684.
To the contrary, Florida law is clear that in “any dispute” which leads to judgment against the insurer and in favor of the insured, attorney’s fees shall be awarded to the insured. See §§ 627.736(8), 627.428(1); see also Dunmore, 301 So. 2d at 503. That is, under PIP law, the focus is outcome-oriented. If a dispute arises between an insurer and an insured, and judgment is entered in favor of the insured, he or she is entitled to attorney’s fees. It is the incorrect denial of benefits, not the presence of some sinister concept of “wrongfulness,” that generates the basic entitlement to the fees if such denial is incorrect. It is clear to us that the purpose of this provision is to level the playing field so that the economic power of insurance companies is not so overwhelming that injustice may be encouraged because people will not have the necessary means to seek redress in the courts. Thus, we find that the Third District’s holding on this issue is patently in express and direct conflict with the firmly grounded principles embedded in Florida’s no-fault insurance scheme. Id. Emphasis added.
While the Defendant harps on the terms “wrongfully causing” and “wrongful conduct” Ivey controls this case and this issue. Furthermore, and as described above, it was the Defendant PIP insurer’s own conduct in initially refusing to pay a timely-submitted bill, then late-paying it, and compounding matters by refusing to pay interest on that late payment.
15. There is no numerical dividing line that this Court is permitted to hold triggers potential attorney’s fees liability to a PIP insurer when it is sued, as the above statutes and case law illustrate. The legislature sought fit not to create a statutory minimum judgment against a PIP insurer that would trigger attorney’s fees liability, and the case law from the Florida Supreme Court, down to the DCA’s and cited above, similarly so indicates.
WHEREFORE, as binding authority holds that in the PIP context, if a judgment is obtained against an insurer by an entity such as the Plaintiff, it shall be entitled to its attorney’s fees and costs incurred in garnering that judgment, the Defendant’s subject Motion to Strike Plaintiff’s Request for Attorney’s Fees is DENIED.
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