24 Fla. L. Weekly Supp. 299b

Online Reference: FLWSUPP 2404PROCInsurance — Personal injury protection — Declaratory actions — Attorney’s fees — Insured is not entitled to award of attorney’s fees under section 627.428 in action seeking declaration regarding insured’s entitlement to insurance coverage under policy but not alleging that insurer has improperly failed to make payments under policy

ANTOINETTE PROCTOR, Plaintiff, vs. SOUTHERN OWNERS INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for St. Johns County. Case No. CC14-45, Division 65. March 31, 2016. Alexander R. Christine, Judge. Counsel: Bryan M. Callaway, Robert P. Eshelman, P.A., Jacksonville Beach, for Plaintiff. Adam Muth, Smith, Rolfes & Skavdahl Co., L.P.A., Orlando, for Defendant.

ORDER ON DEFENDANT’S MOTION FOR PARTIALSUMMARY JUDGMENT RELATING TO PLAINTIFF’SDEMAND FOR ATTORNEY’S FEES AND COSTS

THIS CAUSE having come to be heard upon Defendant’s Motion for Partial Summary Judgment Relating to Plaintiff’s Demand for Attorney’s Fees and Costs, and the Court having reviewed the motions, the argument of counsel, the relevant case law, and being otherwise fully advised in the premises, finds as follows:

I. Findings of Fact

The following material facts are not in dispute. Plaintiff filed a Complaint for Declaratory Relief on January 13, 2014, seeking an adjudication of rights and responsibilities under an insurance contract for statutory personal injury protection insurance (“PIP”) coverage of $10,000.00. (DIN 3). In her Complaint, Plaintiff demands attorney fees and costs under Section 627.428(1), Florida Statutes. Id. Plaintiff does not seek payment of benefits in her Complaint for Declaratory Relief. (DIN 46). Plaintiff solely seeks a declaratory judgment regarding her entitlement to insurance coverage through Defendant’s policy of motor vehicle insurance. Id.

Defendant filed a Motion for Partial Summary Judgment on Plaintiff’s Demand for Attorney’s Fees and Costs on December 31, 2015 (DIN 128). Plaintiff filed her response thereto on February 9, 2016. (DIN 150). This Court heard argument on the Defendant’s Motion for Partial Summary Judgment on Plaintiff’s Demand for Attorney’s Fees and Costs on February 10, 2016. (DIN 151).

II. Legal Standard

Generally, a Motion for Summary Judgment must meet the strict procedural requirements enumerated in Rule 1.510 of the Florida Rules of Civil Procedure. The requirements set forth therein are designed to protect the litigants’ constitutional right to a trial on the merits of a particular claim. Hicks v. Hoagland, 953 So.2d 695 (Fla. 5th DCA 2007)[32 Fla. L. Weekly D909a]; Bifulco v. State Farm Mutual Auto. Ins. Co., 693 So.2d 707 (Fla. 4th DCA 1997)[22 Fla. L. Weekly D1325a]. The Court may grant a motion for summary judgment if the pleadings, discovery, affidavits and other evidentiary materials establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c); Rice v. Green, 941 So.2d 1230 (Fla. 5th DCA 2006)[31 Fla. L. Weekly D2885a]; Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000)[25 Fla. L. Weekly S390a]; see also Holl v. Talcott, 191 So.2d 40 (Fla. 1966); Krol v. City of Orlando, 778 So.2d 490 (Fla. 5th DCA 2001)[26 Fla. L. Weekly D577a]; Willingham v. City of Orlando, 929 So.2d 43, 47 (Fla. 5th DCA 2006)[31 Fla. L. Weekly D1355a]; Everett Painting Co., Inc. v. Padula & Wadsworth Const., Inc., 856 So.2d 1059, 1061 (Fla. 4th DCA 2003)[28 Fla. L. Weekly D2320a]; Wells v. City of St. Petersburg, 958 So.2d 1076, 1079 (Fla. 2d DCA 2007)[32 Fla. L. Weekly D1486c]; Saullo v. Douglas, 957 So.2d 80, 88 (Fla. 5th DCA 2007)[32 Fla. L. Weekly D1248a]; St. Lucie Falls Property Owners Ass’n v. Morelli, 956 So.2d 1283, 1284 (Fla. 4th DCA 2007)[32 Fla. L. Weekly D1443a]. Summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law. Snow v. Byron, 580 So.2d 238 (Fla. 5th DCA 1991); Key v. Trattmann, 959 So.2d 339 (Fla. 1st DCA 2007) [32 Fla. L. Weekly D1370b] (quoting Morris v. Morris, 475 So.2d 666, 668 (Fla. 1985)). The burden for establishing the elements for summary judgment are shouldered by the moving party and the trial judge must draw every inference or resolve every doubt in favor of the party opposing the motion. Id. See also Speedway SuperAmerica, LLC v. Dupont, 933 So.2d 75 (Fla. 5th DCA 2006) [31 Fla. L. Weekly D1471c] (citing Kitchen v. Ebonite Recreation Centers, Inc., 856 So.2d 1083 (Fla. 5th DCA 2003)[28 Fla. L. Weekly D2401a]); Clay Elec. Co-op., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla. 2003)[28 Fla. L. Weekly S866a]; Scheibe v. Bank of America, N.A., 822 So.2d 575 (Fla. 5th DCA 2002)[27 Fla. L. Weekly D1769a]; Petruska v. Smartparks-Silver Springs, Inc., 914 So.2d 502, 504 (Fla. 5th DCA 2005) [30 Fla. L. Weekly D2614a] (citing Turner v. PCR, Inc., 754 So.2d 683 (Fla. 2000)[25 Fla. L. Weekly S233a]); Wells, 958 So.2d at 1079. Where the basic facts of a cause of action are clear and undisputed, there being only a question of law to be determined, summary judgment is proper. Duprey v. United Services Auto. Ass’n, 254 So.2d 57 (Fla. 1st DCA 1971).

III. Analysis

The issue before the Court is whether Plaintiff is entitled to statutory attorney’s fees under Section 627.428(1), Florida Statutes, if Plaintiff is the prevailing party in the present action for declaratory judgment. Fla. Stat. § 627.428(1) provides in pertinent part:

“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.”

The Supreme Court of Florida discussed the purpose of Fla. Stat. § 627.428(1) in State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830 (Fla. 1993). In Palma, the Court stated: “Florida courts, including this Court, have consistently held that the purpose of section 627.428 is ‘to discourage the contesting of valid claims against insurance companies and to reimburse successful insureds for their attorney’s fees when they are compelled to defend or sue to enforce their insurance contracts.’ ” Id. (citing Insurance Co. of North America v. Lexow, 602 So.2d 528, 531).

Case law construing Fla. Stat. § 627.428(1) has clarified the situations in which the statute may be applied to award attorney’s fees in an action for declaratory judgment. In Progressive American Ins. Co. v. Rural/MetroCorp. of Florida, the Fifth District Court of Appeal stated: “RMA is not entitled to attorneys’ fees under section 627.428 because it is limited to prosecution of suits ‘in which recovery is had.’ In this case, RMA will not recover insurance proceeds. As this Court has previously recognized, ‘this statute, and its predecessors, has consistently been interpreted to authorize recovery of attorney’s fees from an insurer only when the insurer has wrongfully withheld payment of the proceeds of the policy.’ ” 994 So.2d 1202, 1209 [33 Fla. L. Weekly D2649a] (citing Ray v. Travelers Ins. Co., 477 So.2d 634, 636 (Fla. 5th DCA 1985). The Court proceeded to state: “In this case, because insurance proceeds were not at issue and because RMA was not entitled to recover any wrongfully withheld payment, section 627.428 does not apply.” Therefore, the Fifth District Court of Appeal clearly only affords recovery of attorney’s fees form an insurer under Fla. Stat. § 627.428 where the insurer “has wrongfully withheld payment of the proceeds of the policy.”

In the instant case, Plaintiff admits she is not seeking any adjudication with respect to whether Defendant has “wrongfully withheld payment of the proceeds of the policy.” Plaintiff is merely seeking adjudication as to whether she is covered under the policy at issue. Defendant’s failure to provide payments under the policy is not, and cannot be, the subject matter of Plaintiff’s action for declaratory judgment¹. Thus, any allegations by Plaintiff that Defendant has improperly failed to make payments under the subject policy are inapposite. Because resolution of the instant action cannot conceivably result in such a favorable determination for Plaintiff as to any payments withheld by Defendant under the subject policy, the Court finds that Fla. Stat. § 627.428 is inapplicable to the instant case.

Plaintiff cites case law in which attorney’s fees were awarded under Fla. Stat. § 627.428 as a result of a favorable declaratory judgment determination in support of its argument that it is entitled to receive attorney’s fees under the applicable subsection in the present action. However, the cases Plaintiff cites are distinguishable from the instant action. In Explorer Ins. Co. v. Cajusma, the Fifth District Court of Appeal determined that the insured is entitled to attorney’s fees where, within a breach of contract action for failure to provide payments under an insurance policy, the insurer files an action for declaratory judgment as to an issue material to the existence of coverage and loses or dismisses that action. 178 So.3d 923 (Fla. 5th DCA 2015)[40 Fla. L. Weekly D2500a]. The Court stated: “Here . . . Explorer filed a separate declaratory judgment action seeking a determination of whether it was required to provide Cajusma a defense and whether it was required to pay his claims under the insurance policy.” Id., at 926. (emphasis added). The Court discussed that Explorer’s action in dismissing the declaratory judgment action operated as a confession of judgment as to amounts owing under the insurance policy at issue. Id. Here, an award of declaratory judgment to Plaintiff will not result in any judgment concerning amounts owing under the policy at issue. The instant declaratory judgment will not result in any determination as to whether Defendant has “wrongfully cause[d] its insured to resort to litigation in order to resolve a conflict with its insurer,” because there is no conflict at issue. See Sanchez v. American Ambassador Casualty Co., 559 So.2d 344, 347 (Fla. 2d DCA 1990).

Additionally, in Gov’t Emps. Ins. Co. v. Battaglia, which Plaintiff cites in support of its argument that attorney’s fees may be awarded in declaratory actions, the Fifth District Court of Appeal held that the insured in that action was not entitled to attorney’s fees incurred in contesting an insurer’s denial of coverage because the insurer did not deny coverage. 503 So.2d 358 (Fla. 5th DCA 1987). The Fifth District Court of Appeal’s decision in Battaglia lends further support to the premise that the present action does not fall within the scope of Fla. Stat. § 627.428, as Plaintiff’s action also does not involve adjudication as to an improper denial of coverage.

The Court finds the decision of the Fifth District Court of Appeal in Progressive American Ins. Co. v. Rural/Metro Corp. of Florida to be controlling in the instant case. The Court also finds that because Plaintiff does not raise any allegations in the instant action for declaratory relief that Defendant has improperly failed to make payments under the subject policy, Fla. Stat. § 627.428 is not triggered². Accordingly, it is:

ORDERED AND ADJUDGED that:

1. Defendant’s Motion for Summary Judgment Relating to Plaintiff’s Demand for Attorney’s Fees under Section 627.428, Florida Statutes, is GRANTED.

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¹The Court notes that, to the extent Plaintiff presently seeks an adjudication as to the issue of whether Plaintiffs are entitled to any payments that Plaintiff alleges Defendant improperly refused to pay under the subject policy, such a claim is an action for breach of contract and may not be decided in the instant action for declaratory relief. That action would involve a determination as to whether Plaintiff complied with the pre-suit notice requirements provided in Section 627.736, Florida Statutes; as such, the Court in the present action cannot afford Plaintiff any adjudication as to the entitlement of payments under the subject policy. The Court also notes that in Plaintiff’s Motion to Strike Defendant’s Affirmative Defenses, she states that Defendant’s affirmative defense concerning payments being overdue is immaterial because “Plaintiff is solely seeking a declaratory judgment regarding her entitlement to insurance coverage through Defendant’s policy of motor vehicle insurance” and “is not seeking payment of benefits in her Complaint for Declaratory Relief.” (DIN 46).

²The Court does not address the issue of awarding costs pursuant to Section 86.011, Florida Statutes, because it has not yet arrived at a determination as to render declaratory judgment in the present action. This Order merely addresses the inapplicability of Fla. Stat. § 627.428 to the instant case.