24 Fla. L. Weekly Supp. 868a
Online Reference: FLWSUPP 2410MOLIInsurance — Personal injury protection — Attorney’s fees — Where medical provider recovered only penalties and postage as result of insurer’s confession of judgment, and all PIP benefits were paid pre-suit, provider is not entitled to award of attorney’s fees under section 627.428
PRECISION DIAGNOSTIC OF LAKE WORTH, LLC (a/a/o Daniel Molina), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 14-12982 SP 23. January 6, 2017. Diana Vizcaino, Judge. Counsel: Leandro Carvalho, The Madalon Law Firm, Fort Lauderdale, for Plaintiff. Anthony G. Atala, Kubicki Draper, P.A., Miami, for Defendant.
FINAL JUDGMENT AND ORDER DENYINGPLAINTIFF’S MOTION FOR ENTITLEMENT TOATTORNEY’S FEES AND COSTS
This cause came before the Court at a hearing held on December 21, 2016 on Plaintiff’s Motion for Entry of Final Judgment. The Court having reviewed the subject motion, Defendant’s Response in Opposition to Plaintiff’s Motion for Entry of Final Judgment regarding Entitlement to Attorney’s Fees and Costs, applicable legal authority, and having heard argument of all counsel, and being fully advised in the premises, it is hereby:
ORDERED AND ADJUDGED:
1. Plaintiff’s Motion for Entry of Final Judgment is GRANTED in part.
2. Pursuant to a Confession of Judgment, the Court grants Judgment in favor of the Plaintiff.
3. Plaintiff’s Motion as to entitlement to reasonable attorney’s fees and costs is DENIED for the reasons sets for herein.
STIPULATED FACTS
During the hearing held on December 21, 2016, the following were stipulated by the parties:
1) On December 10, 2013, Daniel Molina was involved in a motor vehicle accident. Mr. Molina sought medical treatment from medical providers, including the Plaintiff, Precision Diagnostic of Lake Worth, LLC, under the Personal Injury Protection (PIP) policy issued by the Defendant.
2) On April 3, 2014, Plaintiff rendered medical services to the claimant, Daniel Molina.
3) On April 14, 2014, Defendant received the medical bill submitted by Plaintiff in the amount of $3,200.00 for the medical services rendered to Mr. Molina.
4) On May 15, 2014 Plaintiff’s bill became overdue.
5) On June 12, 2014, Defendant received the Plaintiff’s pre-suit demand letter dated May 30, 2014.
6) Defendant made payment to Plaintiff in the amount of $1,937.04 in PIP Benefits and $18.91 in interest.
7) Plaintiff did not receive payment.
8) On July 22, 2014, Defendant reissued payment for the same amounts.
9) The governing policy of insurance issued by Defendant is silent with respect to all issues regarding pre-suit demand letters, including penalties and postage.
10) On August 21, 2014, Plaintiff filed a two count complaint. Count I of the Complaint seeking damages for failure to pay statutory interest pursuant to §627.736(4)(d), and Count II for failure to pay statutory penalty and postage pursuant to §627.736(10)(d).
11) On September 17, 2015, Defendant filed a Notice of Confession of Judgment in the amount of $6.70 for postage, plus Demand Penalty pursuant to Florida Statute 627.736(10(d) in the amount of $200.48.
12) Defendant has issued payment in the amount of $207.18 payable to the Madalon Law Firm for the penalties and postage.
13) Because the Confession of Judgment was only for penalties and postage and not for benefits which were paid presuit, Defendant has denied and objected to Plaintiff’s claim of entitlement for fees and costs.
ANALYSIS
At the hearing held on the instant motion, Plaintiff elected to waive the relief sought in Count I of the Complaint for statutory interest in the amount of $18.91 based on Defendant’s Confession of Judgment and subsequent post-suit payment for penalty and postage. Therefore, the sole issue before the Court is whether Plaintiff is entitled to attorney’s fees and costs provided for in §627.428, Florida Statutes.
Florida Courts have held that entitlement to attorney’s fees and costs under §627.428 is limited to suits that result in the recovery of insurance proceeds or benefits. See Gov’t Emps. Ins. Co. v. Gonzalez, 512 So. 2d 269 (Fla. 3rd DCA 1987) (holding entitlement to attorney’s fee under §627.428 “when, but only when, it has wrongfully withheld the proceeds of the policy”); Progressive American Ins. Co. v. Rural/Metro Corp. of Florida, 994 So. 2d 1202, 1209 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D2649a] (holding that §627.428 “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.” (quoting Ray v. Travelers Ins. Co., 477 So. 2d 634, 636 (Fla. 5th DCA1985). The Court finds §627.48 inapplicable in the instant case, as recovery of wrongfully withheld insurance proceeds/benefits are not at issue.
Furthermore, in applying Petty v. Florida Insurance Guaranty Association, Inc. 80 So. 3d 313 (Fla. 2012) [37 Fla. L. Weekly S34a], the Court finds that statutory penalty and postage, as demanded by Plaintiff, are not insurance proceeds or benefits under the policy. Under Petty, the obligations under §627.737(10)(d) to pay statutory penalty and postage is imposed by operation of law and does not alter the provisions of coverage in the policy. See Petty, 80 So.3d at 317. As such, without recovery for benefits, Plaintiff is not entitled to an award of fees and costs pursuant to §627.48.CONCLUSION>/U<
Plaintiff’s recovery was solely based on the penalties imposed by §627.736(10)(d). As a result, the Court finds §627.428 inapplicable to the case at bar, and hereby denies Plaintiff’s entitlement to Attorney’s Fees and Costs.
