24 Fla. L. Weekly Supp. 167a
Online Reference: FLWSUPP 2402SUZAInsurance — Personal injury protection — Attorney’s fees — Declaratory action — Insured who prevailed in declaratory action determining that insurer is obligated to provide PIP and medical payment coverage is entitled to award of attorney’s fees under section 627.428(1) notwithstanding fact that insured did not seek money damages
SUZANNE JOHNSON, Plaintiff, v. SOUTHERN-OWNERS INSURANCE COMPANY, a foreign corporation, Defendant. County Court,13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 13-CC-027093. Division L. April 29, 2016. Honorable Kim Hernandez Vance, Judge. Counsel: Philip A. Friedman, FL Legal Group, Tampa, for Plaintiff. Rhamen M. Love-Lane, Smith, Rolfes & Skavdahl Co., L.P.A., Fort Lauderdale, for Defendant.
ORDER GRANTING PLAINTIFF’S ENTITLEMENTTO ATTORNEY’S FEES AND COSTS ANDDENYING DEFENDANT’S MOTION IN OPPOSITION
THIS CAUSE came before the Court at a hearing on January 27, 2016, on Plaintiff’s Renewed Motion to Tax Attorney’s Fees and Costs filed December 17, 2015 and Defendant’s Motion in Opposition to Plaintiff’s Motion to Tax Attorney’s Fees and Costs and Plaintiff’s Renewed Motion to Tax Attorney’s Fees and Costs filed December 18, 2015. The Court having considered the Plaintiff’s Motion, Defendant’s Motion in Opposition, Memorandum of Law, the supplemental authority provided, the arguments presented by counsel, the applicable law, and being otherwise fully advised finds
1. On October 11, 2013, Plaintiff instituted this action for declaratory judgment against Defendant seeking a determination of coverage for unpaid and overdue personal injury protection (“PIP”) and possible medical payment coverage (“MPC”) benefits under Defendant’s insurance policy, which Plaintiff claims covers damages sustained by Plaintiff in a motor vehicle accident on March 24, 2012. Plaintiff’s Petition included a request for attorney’s fees pursuant to Florida Statutes sections 627.428 and 627.736, costs under Florida Statutes sections 92.231 and 57.041, and legal assistant fees under Florida Statutes section 57.104.
2. On September 18, 2015, this Court entered Final Summary Judgment in Favor of Plaintiff in which the Court issued “a Declaration in favor of Plaintiff, Suzanne Johnson, that the Defendant is obligated to provide coverage to Plaintiff” for both PIP and MPC benefits. On November 13, 2015, this Court denied Defendant’s Motion for Rehearing/Reconsideration of Final Summary Judgment in Favor of Plaintiff.
3. Pursuant to Florida Rule of Civil Procedure 1.525, on October 9, 2015, Plaintiff filed its Motion to Tax Attorney’s Fees and Costs seeking fees and costs under sections 627.428, 627.736, and 57.104. After the Court’s denial of the rehearing in this matter, Plaintiff filed its Renewed Motion to Tax Attorney’s Fees and Costs on December 17, 2015.
4. Plaintiff argues that as a result of the Final Summary Judgment in Favor of Plaintiff, she is entitled to reasonable attorney’s fees under Florida Statutes section 627.428 and 627.736(8).
5. Defendant argues that “Plaintiff did not seek any money damages in its Petition and is not a prevailing party; therefore, Plaintiff is not entitled to an award of attorney fees or costs.” Def.’s Mtn in Opposition to Pl.’s Mtn to Tax Attorney’s Fees and Costs and Pl.’s Renewed Mtn. to Tax Attorney’s Fees and Costs ¶ 9 (Dec. 28, 2015). Defendant argues that section 627.428 provides for attorney’s fees in a case “in which recovery is had” and that because this was not a suit for benefits or money damages, section 627.428 does not apply.
6. Florida Statutes section 627.428(1) provides that “[u]pon 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 . . . the trial 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.”
7. In Bassette v. Standard Fire Insurance Co., the Second District Court of Appeal addressed section 627.428 and entitlement to attorney’s fees in declaratory judgment action, 803 So. 2d 744 (Fla. 2d DCA 2001) [26 Fla. L. Weekly D1670b]. In Bassette, Ms. Bassette had filed a suit to recover damages for injuries sustained in an automobile accident; Ms. Bassette joined her insurer in the action seeking uninsured motorist benefits. Id. at 745. During the litigation, Ms. Bassette’s insurer sought medial authorizations and upon Ms. Bassette’s refusal to sign the authorizations, the insurer indicated that failure to sign the authorization could result in denial of coverage. Id. Based on this dispute, Ms. Bassette filed a declaratory judgment action against her insurer. Id. The declaratory judgment action was consolidated with the underlying personal injury action. Id. After the trial court granted summary judgment in favor of Ms. Bassette on the main issue related to the declaratory judgment action and the authorizations, Ms. Bassette sought attorney’s fees under section 627.428(1). Id. at 745746. The trial court denied the motion “finding that there was no evidence that [the insurer] had denied coverage.” Id. at 746.
8. The Second District Court of Appeal “focus[ed] on the issue of whether the dispute that culminated in a declaratory judgment was sufficient to entitle Ms. Bassette to attorney’s fees under sections 627.428(1) and 627.727(8). In discussing the application of section 627.428, the Second District Court of Appeal indicated that the situation contemplated in section 627.428, that “an insured must enforce rights under a contract and a judgment is rendered against the insurer . . . applies when an insured prevails in a declaratory judgment action regarding coverage.” Id. at 746. The Second District Court of Appeal found that the declaratory judgment action in Bassette amounted to a coverage dispute that was resolved in the insured’s favor and the insured was therefore entitled to attorney’s fees. Id. at 746-747.
9. Defendant attempts to distinguish Bassette from the current matter before the Court by raising the point that the declaratory judgment action had been consolidated with the underlying personal injury action seeking benefits. From its reading of Bassette, this Court does not believe the consolidated nature of the proceeding to be a determining factor in the fee award. The Second District Court of Appeal’s ruling does not appear to implicate the pending personal injury action, or the result thereof, as having an effect on Ms. Bassette’s entitlement to attorney’s fees in the declaratory judgment action. In fact, there is no indication in the Second District Court of Appeal’s opinion that Ms. Bassette received benefits as a result of the case or that a monetary judgment was received. Rather, the Second DCA indicated that the coverage dispute “was finally resolved in Ms. Bassette’s favor by the trial court’s declaration that the Florida Rules of Civil Procedure, not the provision of Standard Fire’s policies, governed,” id. at 746 (emphasis added), and therefore, “Ms. Bassette [was] entitled to recover her attorney’s fees in the declaratory judgment action.” Id. at 747 (emphasis added); see also State Farm Mutual Automobile Insurance Company v. Stack, 543 So. 2d 782, 783-784 (Fla. 5th DCA 1989) (indicating that “[i]t is well settled that a determination of coverage in favor of the insured which, as here, finally disposes of a discrete piece of litigation which is concerned with that issue qualifies for fees under the statute”). Like in Bassette, this Court’s declaration in the September 18, 2015 Final Summary Judgment in Favor of Plaintiff resolved the coverage dispute at issue in the declaratory judgment action.
10. Additionally, section 627.428(1) does not indicate that a specific type of judgment or recovery is required in order to trigger entitlement to attorney’s fees; it is not necessary for the insured to receive a money judgment, the entitlement to attorney’s fees is triggered by “a judgment or decree” in favor of the insured against the insurer; See § 627.428(1), Fla. Stat.; Citizens Property Insurance Corp. v. Bascuas, 178 So. 3d 902, 904 (Fla. 3d DCA 2015) [40 Fla. L. Weekly D2342b] (indicating that “a judgment against an insurer and in favor of an insured” triggered entitlement to attorney’s fees under section 627.428 and noting that “[t]he fact that Bascuas did not obtain a money judgment in its favor does not preclude their entitlement to fees”) (emphasis in original); Rodriguez v. Government Employees Insurance Company, 80 So. 3d 1042, 1045 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D2788a]; see also Black’s Law Dictionary 388 & 599 (3d pocket ed. 2006) (defining judgment as “[a] court’s final determination of the rights and obligations of the parties in a case” and recovery as “[t]he obtainment of a right to something (esp. damages) by a judgment or decree”).
11. Defendant relies on Progressive American Insurance Company v. Rural/Metro Corporation of Florida in support of its argument. 994 So. 2d 1202 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D2649a]. This Court, however, finds Progressive American Insurance Company v. Rural/Metro Corporation of Florida to be factually distinguishable from this case. Additionally, this Court finds the Bassette case to be more factually similar to the present matter and binding upon this Court.
12. The Court finds Plaintiff’s Motion to Tax Attorney’s Fees and Costs and Plaintiff’s Renewed Motion to Tax Attorney’s Fees and Costs were timely filed. See Fla. R. Civ. P. 1.525.
13. Plaintiff obtained a Final Summary Judgment in her favor determining that the Defendant is obligated to provide coverage under its policy of insurance; therefore, the Court finds this matter falls within the purview of section 627.428 entitling Plaintiff to an award of reasonable attorney’s fees.
Based on the foregoing, it is therefore ORDERED AND ADJUDGED
1. Plaintiff’s Renewed Motion to Tax Attorney’s Fees and Costs is hereby GRANTED. Plaintiff is entitled to attorney’s fees and costs in this matter.
2. The Court reserves jurisdiction to determine the reasonable amount of attorneys’ fees and costs in this matter.
3. Defendant’s Motion in Opposition to Plaintiff’s Motion to Tax Attorney’s Fees and Costs and Plaintiff’s Renewed Motion to Tax Attorney’s Fees and Costs is hereby DENIED.
