24 Fla. L. Weekly Supp. 457b
Online Reference: FLWSUPP 2406BENDInsurance — Personal injury protection — Attorney’s fees — Declaratory action — Recovery of attorney’s fees under section 627.428 is not limited to cases in which plaintiff recovers insurance benefits — Attorney’s fees are available to medical provider in declaratory action seeking determination of whether insurer’s policy properly incorporates permissive statutory fee schedule — Request to strike demand for attorney’s fees is premature where court has not yet rendered judgment or decree
ROYAL PALM BEACH REHAB, CORP. a/a/o Stephanie Bendolph, Plaintiff, vs. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 502016SC000012XXXXSB RS.July 14, 2016. Paul Damico, Judge. Counsel: Howard W. Myones, Anidjar & Levine, P.A., Fort Lauderdale, for Plaintiff. Maxwell M. Nelson, Fort Lauderdale for Defendant.
ORDER ON DEFENDANT’S MOTIONTO STRIKE DEMAND FOR ATTORNEY’S FEES
THIS CAUSE, having come before the Court, regarding Defendant’s Motion to Strike Demand for Attorney’s Fees, and the Court having reviewed the pleadings, the motion, the entire Court file, and all relevant legal authorities, and otherwise having been fully advised in the premises, the Court finds as follows:
This action consists of two counts. Count I of Plaintiff’s Amended Complaint requests a declaratory judgment. Count II, pled in the alternative, is a breach of contract count. The Defendant’s motion states that because Count I is not an action to recover benefits, it is not subject to a claim for attorney’s fees under Florida Statute Section 627.428.
Florida Statute Section 627.428(1) states:
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.
Paragraph 42 of Count I of Plaintiff’s Amended Complaint states “The Plaintiff has retained the undersigned counsel to prosecute this action and is entitled to recover its reasonable attorneys’ fees and costs pursuant to Section 627.428, Florida Statutes.” The Defendant has requested that the Court strike this paragraph from the Plaintiff’s Amended Complaint as the Defendant alleges that Count I will not determine whether the Defendant wrongfully withheld insurance proceeds and Counsel for Plaintiff will never secure a penny for their client by only obtaining declaratory relief. In support these allegations, the Defendant relies upon Progressive American Insurance Company v. Rural/Metro Corp. of Florida, 994 So. 2d 1202 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D2649a]. In Rural/Metro, the 5th DCA held that because RMA will not recover insurance proceeds and because insurance proceeds were not at issue, Section 627.428 did not apply. Id. at 1209.
The Court disagrees with the Defendant for two reasons. First, Section 627.428 states upon the rendition of a judgment or decree. It is clear the Defendant’s motion is premature as the court has not entered a judgment or decree. Furthermore, the Plaintiff is not requesting that the Court enter an order granting the Plaintiff attorneys’ fees and costs at this moment. The Plaintiff has only made an allegation in its complaint that should it prevail on Count I, it will be owed attorneys’ fees and costs. As the court has not entered a judgment or decree on this matter, it would be inappropriate for the Court to determine whether or not any recovery has been had pursuant to Section 627.428(1).
Secondly, the Court disagrees with the Defendant’s analysis of Rural/Metro. The Defendant alleges that Rural/Metro stands for the proposition that if the Plaintiff does not recover actual money/benefits in its action, then there can be no recovery of attorneys’ fees and costs pursuant to Section 627.428. However, Rural/Metro makes no mention of money and/or insurance benefits. Rural/Metro makes reference to insurance proceeds. Since the 5th DCA ruled on Rural/Metro, they have twice found that a Plaintiff’s Petition for Declaratory Judgment can lead to Section 627.428 attorneys’ fees should the insurer change its position and the Plaintiff succeed on the merits of its petition. Contreras v. 21st Century Insurance Company, 53 So.3d 1194 (Fla. 5th DCA 2011) [36 Fla. L. Weekly D314c] (Court held that confession of judgment doctrine triggering attorneys’ fees under Section 627.428 applied to case in which Plaintiff filed Petition for Declaratory Relief to determine whether insurer had to provide UM rejection form under Section 627.4137); Tampa Chiropractic Center, Inc. v. State Farm Mutual Automobile Insurance Company, 141 So.3d 1256 (Fla. 5th DCA 2014) [39 Fla. L. Weekly D1441a] (Court held that Petition for Declaratory Relief to determine whether the provider had to submit certain items pursuant to Section 627.736(6)(b) could trigger Section 627.428 attorneys’ fees).
However, this court is most influenced by the binding authority of the Fourth District Court of Appeals. In Old Republic Insurance Company v. Monsees, the Court held that even though the appellee “made no recovery in the sense of obtaining money damages. . .the application of the statute is not limited to suits for the recovery of money.” 188 So.3d 893, 895 (Fla. 4th DCA 1966). This was further solidified in Travelers Indem. Ins. Co. of Illinois v. Meadows MRI, LLP, 900 So.2d 676 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D962c]. In that case, Meadows MRI was forced to file a Petition for Declaratory Relief to determine the procedures of an appraisal under an insurance policy. No monetary insurance benefits were at issue. The Court cited Insurance Co. of North America v. Lexow, 602 So.2d 528 (Fla. 1992) which stated “Florida courts have consistently held that the purpose of Section 627.428 and its predecessor 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. at 679. The Fourth DCA held that Section 627.428 applied and saw no rationale for not extending the statute to cover an award of attorney’s fees associated with the insurer’s disputed value estimation and rules of appraisal. Id.
The instant case is comparable to Meadows MRI, LLP. Here, the Plaintiff has disputed that the Defendant’s policy language allows it to take advantage of the permissive schedule of maximum charges when calculating reimbursements of PIP benefits. The Plaintiff has requested the court determine whether the Defendant’s Policy properly incorporates the permissive “fee schedule” methodology in compliance with Geico v. Virtual Imaging Services, 141 So.3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a] and Kingsway Amigo v. Ocean Health, 63 So.3d 63) (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a]. Based on Monsees, Meadows MRI, LLP, and Lexow, this court finds that the recovery of attorney’s fees and costs under a petition for declaratory relief is not limited to cases in which the Plaintiff recovers insurance benefits/money and can extend to petitions for declaratory relief. However, as stated above, the Court finds that the Defendant’s request to strike the Plaintiff’s Demand for Attorney’s Fees from its Amended Complaint is premature and improper at this time.
It is therefore ORDERED AND ADJUDGED that Defendant’s Motion to Strike Demand for Attorney’s Fees is DENIED.
