23 Fla. L. Weekly Supp. 808b
Online Reference: FLWSUPP 2308LJONInsurance — Personal injury protection — Attorney’s fees — Appellate — Motion for reconsideration of order awarding appellate attorney’s fees to medical provider is denied where motion raises new issues and does not identify points of law overlooked or misapprehended by appellate court — Insurer that agreed to remove language stating that each party would bear its own attorney’s fees and costs from voluntary dismissal waived issue of provider’s entitlement to fees — Precedent mandating fee award to prevailing party in PIP cases is applicable to cases that are voluntarily dismissed
GEICO INDEMNITY CO., Appellant, vs. SOUTH FLORIDA PAIN AND REHABILITATION OF WEST BROWARD LLC a/a/o Lashon Jones, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami Dade County. Case No. 15-149 AP. L.C. Case No. 13-10424 SP 25. January 11, 2016. Counsel: Monica Segura, Rumberger, Kirk & Caldwell, Miami, for Appellant. Andrew Paul Kawel, Kawel PLLC, Coral Gables, for Appellee.
ORDER ON APPELLANT’S MOTIONFOR REHEARING/RECONSIDERATION
(CYNAMON, Judge.) Upon review of the court record and consideration of the Appellant’s Motion for Rehearing/Reconsideration of the Order Awarding Appellate Attorneys’ Fees and Costs to South Florida Pain and Rehabilitation of West Broward LLC, the Court finds as follows:
1. Rule 9.350(a) of the Florida Rules of Appellate Procedure (2015) provides that a motion for rehearing, “shall state with particularity the points of law or fact, that in the opinion of the movant, the court has overlooked or misapprehended in its decision and shall not present issues not previously raised in the proceedings.” Appellant’s Motion raises new issues and citations, but does not address points of law overlooked or misapprehended by the court.
2. The court record evidences the filing of Appellee’s Motion for Attorneys’ Fees and Costs on June 1, 2015. In the exercise of due diligence, this Motion should have been properly addressed.
3. Appellant concedes that the initial draft of its voluntary dismissal contained language stating that each party shall bear its own attorneys’ fees and costs. Upon Appellee’s objection to this specific language, Appellant subsequently removed the attorney fee and cost language in the Voluntary Dismissal filed with the court; thereby effectively waiving this issue.
4. Florida law mandates the statutory award of reasonable attorneys’ fees to the prevailing party in personal injury protection (PIP) cases. Arango v. United Auto. Ins. Co., 901 So. 2d 320, 321 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D1129a]. This legal precedent applies to cases which are voluntarily dismissed in which there was no decision on the merits. Id.
IT IS THEREFORE ORDERED AND ADJUDGED:
Appellant’s Motion for Rehearing/Reconsideration is hereby DENIED.
