21 Fla. L. Weekly Supp. 135b
Online Reference: FLWSUPP 2102SALIInsurance — Attorney’s fees — Prevailing party — Reversal of underlying judgment mandates reversal of section 627.428(1) fee award
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. STAND-UP MRI OF MIAMI, INC., A/A/O ANA SALINAS, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 12-004489CACE. L.T. Case No. 08-002352COCE. October 2, 2013. Appeal from the County Court for the Seventeenth Judicial Circuit, Broward County, Martin R. Dishowitz, Judge. Counsel: Thomas L. Hunker, The Office of the General Counsel, United Automobile Insurance Company, Miami, for Appellant. Dean A. Mitchell, Ocala, for Appellee.
OPINION
(PER CURIAM.) United Automobile Insurance Company (“Appellant”) appeals from the Agreed Final Judgment and Order on Boyar and Freeman’s Motion to Set Reasonable Attorney’s Fee [sic] and Costs, entered in County Court on February 7, 2012. This Court, having carefully considered the briefs, the Record, the applicable law and being duly advised in the premises, dispenses with oral argument, and finds that the Agreed Final Judgment and Order on Boyar and Freeman’s Motion to Set Reasonable Attorney’s Fee [sic] and Costs must be reversed as set forth below.
Appellant argues, and Appellee concedes, that reversal of the underlying Final Judgment requires the reversal of the statutory fee award pursuant to section 627.428(1), Florida Statutes.1 Since Section 627.428(1), Florida Statutes, predicates the award of attorney’s fees upon entry of judgment in favor of the insured, the reversal of the underlying Final Judgment mandates the reversal of the Agreed Final Judgment and Order on Boyar and Freeman’s Motion to Set Reasonable Attorney’s Fee [sic] and Costs. See § 627.428(1), Fla. Stat. (2012); Hart v. Bankers Fire & Cas. Ins. Co., 320 So.2d 485 (Fla. 4th DCA 1975) (explaining that the statute that provides for the award of attorney’s fees in suits between an insurer and an insured presupposes the entry of a judgment against the insurer in which recovery is had by the insured). Accordingly, it is
ORDERED AND ADJUDGED that the Agreed Final Judgment and Order on Boyar and Freeman’s Motion to Set Reasonable Attorney’s Fee [sic] and Costs is hereby REVERSED. (STREITFELD, GATES and PHILLIPS, JJ., concur.)
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1This Court, sua sponte, takes judicial notice of the Clerk’s docket entries and the filings in CACE10-033958. Under case number CACE10-033958, filed prior to the commencement of the instant matter, Appellant appealed the underlying Final Judgment to this Court. This Court’s Opinion, filed January 18, 2013, reversed and remanded the Final Judgment. On April 1, 2013, this Court issued the Mandate reversing and remanding the underlying Final Judgment.
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