22 Fla. L. Weekly Supp. 263b
Online Reference: FLWSUPP 2202PREVInsurance — Personal injury protection — Declaratory action — Attorney’s fees — Plaintiff who prevailed in declaratory action challenging rental car company’s denial of PIP coverage for injuries sustained while driving rental car is entitled to award of attorney’s fees and costs — It is immaterial that plaintiff did not actually recover insurance proceeds in case where rental car company has been ordered to make PIP benefits available to her
MARIA PREVEZ-FALCON, Plaintiff, v. ENTERPRISING LEASING COMPANY OF FLORIDA, LLC, a resident LLC, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 2012-CC-5695, Division G. September 16, 2014. Scott Mitchell, Judge. Counsel: Vincent P. Gallagher, Beach Life Law, LLC, Neptune Beach, for Plaintiff. William McFarlane, McFarlane & Dolan, Coral Springs, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONTO TAX ATTORNEY’S FEES AND COSTS
This matter came before the Court on Plaintiff’s Motion to Tax Attorneys’ Fees and Costs pursuant to a Final Summary Judgment entered against Defendant on May 12, 2014 [ 22 Fla. L. Weekly Supp. 103b].Plaintiff filed a declaratory judgment action on June 1, 2012 against Defendant alleging that Plaintiff was entitled to PIP benefits from Defendant for a motor vehicle accident which occurred June 26, 2009.
The underlying facts were not in dispute. Maria Prevez-Falcon, (Plaintiff), was driving a vehicle owned by Enterprising Leasing Company of Florida, LLC, (Defendant) and was involved in a motor vehicle accident. Plaintiff suffered injuries and incurred medical expenses as a result of the accident. Although Plaintiff was an occupant of Defendant’s vehicle, Defendant declined to extend PIP coverage, alleging that Plaintiff was excluded from Defendant’s coverage.
At the time of the accident, Plaintiff co-owned a motor vehicle. As an “owner” of a motor vehicle, Plaintiff was obligated to meet Florida Motor Vehicle No-Fault Law requirements of maintaining PIP coverage for that vehicle. Plaintiff and the vehicle’s co-owner purchased Florida No-Fault coverage through a policy issued by Security National Insurance Company. The Security National Policy listed the co-owner as the named insured and Plaintiff as an “additional driver”.
Plaintiff’s status as an additional driver provided Plaintiff with the required PIP coverage, but only while occupying the insured vehicle. The co-owner, as the “named insured”, enjoyed PIP coverage while occupying any vehicle in the State of Florida. The provisions of the Security National policy did not provide coverage to the Plaintiff for the accident at issue as Plaintiff was not occupying the “insured vehicle.” Security National denied payment of Personal Injury Protection (“PIP”) benefits.
Plaintiff submitted a claim for coverage to Defendant which was a self-insured entity for the purpose of compliance with the Florida Motor Vehicle No-Fault law. Defendant denied coverage alleging that since Plaintiff owned an automobile, Plaintiff was excluded from Defendant’s PIP benefits. After two years of litigation, the matter was finally decided in Plaintiff’s favor, with this Court granting Final Summary Judgment to Plaintiff and ordering Defendant to provide “No-Fault benefits to Plaintiff as defined in F.S. §627.730-627.7405.”
Plaintiff timely filed a Motion for Entitlement to Attorneys’ Fees which Defendant opposed. Defendant interpreted Progressive American Insurance Company v. Rural/Metro Corporation of Florida, 994 So.2d 1202, (Fla. 5th DCA 2008) [33 Fla. L. Weekly D2649a], as requiring Plaintiff to actually recover insurance proceeds as a prerequisite to attorney fee entitlement. In the instant case, Defendant has been ordered to make PIP benefits available to Plaintiff pursuant to the “coverage issue” decided in Plaintiff’s favor.
This Court does not read Progressive American as narrowly as Defendant requests. This Court takes guidance from a string of cases which are founded upon successful coverage determinations pursuant to a Declaratory Judgment.
In Bassette v. Standard Fire, 803 So.2d 744, (Fla. 2nd DCA 2001) [26 Fla. L. Weekly D1670b] the court stated, “If a dispute is within the scope of section 627.428 and an insured must enforce rights under a contract and a judgment is rendered against the insurer, the insurer is required to pay attorney’s fees to the insured or beneficiary.” (Id at 746.) In the instant case, Plaintiff was the omnibus insured under the Defendant’s automobile insurance policy by virtue of being an occupant of Defendant’s vehicle. Thus, the Declaratory action was within the parameters of F. S. 627.428(1) and Plaintiff was forced to litigate her rights under the policy. The fact that Defendant believed in good faith that Plaintiff was excluded from coverage does not insulate Defendant from payment of Plaintiff’s attorney’s fees and costs.
In Cincinnati Insurance Company v. Palmer, 297 So. 2d 96, (Fla. 4th DCA 1974), the court explained that, “The fact that the insurer’s refusal to pay the amount owed by it under the terms of the policy was in good faith and on reasonable grounds does not relieve the insurer from liability for payment of attorney’s fees where it is subsequently found liable on the policy” (Id. at 98).
In the present case, after denying the claim since the date of accident in June 2009, Enterprise undoubtedly had a good faith belief that Plaintiff was excluded from PIP coverage for PIP benefits associated with the accident. That good faith belief, however, does not insulate Defendant from liability for attorney fees and costs.
In Mercury Insurance Company of Florida vs. Kiril Anatkov, 929 So.2d 624, (Fla. 3rd DCA 2006) [31 Fla. L. Weekly D1315b], the court found that the “repudiation of . . .coverage engendered the instant statutory and breach of contract claims and warranted a statutory fee and cost award.” (Id. at 627). The court further declared: “This applies when an insured prevails in a declaratory judgment action regarding coverage.” (Id. at 627).
In summary, Plaintiff filed a complaint for declaratory judgment challenging Defendant’s denial of coverage regarding benefits mandated by F.S. § 627.736. This Court ruled that Plaintiff is entitled to coverage and payment of those required benefits and thus Plaintiff is also entitled to attorney’s fees and costs pursuant to F.S. § 627.428.
* * *
