22 Fla. L. Weekly Supp. 687a
Online Reference: FLWSUPP 2206OLIVInsurance — Personal injury protection — Attorney’s fees — Trial court erred in awarding provider prevailing party attorney’s fees pursuant to section 627.428 where judgment obtained after jury trial was less than insurer’s presuit settlement offer — Statute applies to presuit offers of settlement — Insurer was not required to include attorney’s fees in its presuit offer, as plaintiff was not entitled to attorney’s fees for work done prior to filing of lawsuit unless insurer’s unreasonable conduct necessitated the work, a circumstance not present in instant case
UNITED AUTOMOBILE INSURANCE COMPANY, A Florida corporation, Appellant, v. AFFILIATED HEALTH CENTERS, INC., a/a/o Jacqueline Olivas, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 12-206 AP. L.T. Case No. 07-15984 CC 05. January 16, 2015. An Appeal from the County Court for Miami-Dade County, Wendell M. Graham, Judge. Counsel: Michael J. Neimand, United Automobile Insuance Company, Office of General Counsel, for Appellant. Marlene S. Reiss, Law Offices of Marlene S. Reiss, P.A., for Appellee.
(Before MURPHY, RODRIGUEZ-CHOMAT and FAJARDO, JJ.)
(MURPHY, Judge.) Appellant, United Automobile Insurance Company (United Auto), appeals the trial court’s Final Judgment awarding attorney’s fees and costs in favor of the appellee, Affiliated Healthcare Center (Affiliated). We reverse.
On August 2, 2007, the attorney for Affiliated sent a demand letter to United Auto requesting payment of medical bills under the PIP statute. On August 21, 2007, United Auto issued a PIP benefits check in the amount of $2,547.20 and requested Affiliated to submit bills for claimed dates of service not previously received. Affiliated submitted the requested bills and on August 28, 2007, United Auto issued an additional check in the amount of $940 as payment for those billing dates. United Auto’s total amount tendered pre-suit to Affiliated to settle the claim was $3,487.20. Affiliated rejected this settlement amount and on September 11, 2007, suit was filed.
At trial, the jury returned a verdict in favor of Affiliated and the trial court entered a final judgment in the amount of $2,503.20 in PIP benefits plus $807.28 in prejudgment interest for a total of $3,310.48. Additionally, the final judgment found that Affiliated was the prevailing party and was entitled to attorney’s fees and costs. United Auto filed a motion to vacate Affiliated’s entitlement to attorney’s fees arguing that Affiliated was not the prevailing party pursuant to §627.428, Florida Statutes because the final judgment obtained was less than the tendered and rejected pre-suit settlement amount. After several hearings, including an evidentiary hearing on the amount of attorney’s fees, the trial court reaffirmed Affiliated’s entitlement to fees and on April 30, 2012, entered a Final Judgment awarding attorney’s fees, costs, expert witness fees and interest.
United Auto appeals the trial court’s Final Judgment awarding attorney’s fees to Affiliated. United Auto relies on Danis Industries Corp. v. Ground Improvement Techniques, Inc., 645 So. 2d 420 (Fla. 1994) in arguing that Affiliated was not entitled to the award of attorney’s fees as a prevailing party under §627.428 because the amount of PIP benefits awarded in the final judgment was less than the pre-suit amount tendered in settlement.
Affiliated argues that the plain language of §627.428 only requires that a judgment be obtained in their favor to prevail. It is Affiliated’s position that the language in Danis relied on by United Auto is not the holding in the case, but only dicta. Additionally, Affiliated argues that Danis is not applicable in this case because it does not deal with pre-suit settlement offers nor was it a PIP case. Finally, Affiliated argues, if Danis does apply, its language still supports the trial court’s finding of entitlement, because United Auto’s pre-suit offer had to include the attorney’s fees incurred prior to the offer of settlement.
The standard of review on appeal on the issue of a party’s entitlement to attorney’s fees as the prevailing party is de novo. See State Farm Fla. Ins. Co. v. Silber, 72 So. 3d 286 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D2298a].
The relevant portion of §627.428, Florida Statutes provides as follows:
(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.
§627.428(1), Fla. Stat.
The Florida Supreme Court has acknowledged and agreed with the rulings of lower courts in holding that under §627.428 the “ ‘prevailing insured or beneficiary’ is one who has obtained a judgment greater than any offer of settlement previously tendered by the insurer. Absent that, the insured or beneficiary is entitled to no fee award.” Danis Industries Corp. v. Ground Improvement Techniques, Inc., 645 So. 2d at 421. (internal citations omitted). Affiliated’s claim that this language is dicta is incorrect. The Florida Supreme Court in State Farm Mutual Automobile Insurance Co., v. Nicholas, 932 So. 2d 1067, 1074 (Fla. 2006) [31 Fla. L. Weekly S358a] while discussing Danis stated: “The specific issue in that case was what it meant for an insured to “prevail” under section 627.428. We held that an insured “obtain[s] a judgment greater than any offer of settlement previously tendered by the insurer.’” What it means to prevail is exactly the issue that is presented in this case. Therefore, because the $2,503.20 in PIP benefits obtain in the final judgment was less than United Auto’s pre-suit tender of $3,487.20 for PIP benefits, Affiliated was not the prevailing party.
Contrary to Affiliated position, an award of attorney’s fees pursuant to §627.428 is applicable to pre-suit offers of settlement. See Greenough v. Aetna Casualty Surety Co., 449 So.2d 1001 (Fla. 4th DCA 1984). Additionally, the attorney’s fees provision contained in §627.736 of the PIP statute specifically states that §628.428 shall apply. Thus, the fact that Danis was not a PIP case does not prohibit its application to a PIP case as argued by Affiliated. Numerous circuit courts acting in their appellate capacity have found Danis applies in PIP cases to pre-suit settlement offers. Union American Ins. Co. v. Ismael Lopez, 6 Fla. L. Weekly Supp. 72a (Fla. 11th Jud. Cir. October 23, 1998); Labrouse v. U.S. Security Ins. Co., 13 Fla. L. Weekly Supp. 892a(Fla. Jud. Cir. March 22, 2006); U.S. Security Ins. Co. v. North Miami Therapy Center, Inc., 15 Fla. L. Weekly Supp. 582b (Fla. 17th Jud. Cir. March 10, 2008); Lauderdale Physicians Assoc. v. United Automobile Ins. Co., 18 Fla. L. Weekly Supp. 302a (Fla. 11th Jud. Cir. December 15, 2010); United Automobile Ins. Co. v. Complete Rehab & Medical Center of Hollywood, 20 Fla. L. Weekly Supp. 333a (Fla. 17th Jud. Cir. November 27, 2012).
Affiliated argues, if Danis does apply, its language still supports the trial court’s finding of entitlement, because United Auto’s pre-suit offer had to include the attorney’s fees incurred prior to the offer of settlement. This argument is without merit. Affiliated is not entitled to pre-suit attorney’s fees under §627.736(11)(d), the demand letter section of the PIP statutes, which states: “The insurer shall not be obligated to pay any attorney’s fees if the insurer pays the claim or mails its agreement to pay for future treatment within the time prescribed by this subsection.”
An insured cannot recover attorney’s fees for work done prior to the filing of the lawsuit unless the insurer’s unreasonable conduct necessitated the work. U.S. Fidelity v. Rosado, 606 So. 2d 628 (Fla. 3d DCA 1992). Affiliated argued, both in the trial court and on appeal, that United Auto acted unreasonably by making no attempt to pay the claim until the demand letter was sent. There is no evidence in the record showing United Auto acted unreasonably which would justify the additional of pre-suit hours in determining whether Affiliated was the prevailing party entitled to attorney’s fees. In fact, the record shows the trial court found no basis to award Affiliated’s attorney fees for pre-suit work; even though there was no doubt the attorney had spent 3.9 hours for that work.
FOR THESE REASONS, the Final Judgment awarding attorney’s fees and costs in favor of Affiliated is REVERSED, and this cause is REMANDED to the trial court with directions to enter an order finding that Affiliated is not a prevailing party pursuant to section 627.428, Florida Statutes, and therefore, is not entitled to attorney’s fees and costs. (RODRIGUEZ-CHOMAT and FAJARDO, J.J., concur.)
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