25 Fla. L. Weekly Supp. 91a
Online Reference: FLWSUPP 2501FRANAttorney’s fees — Insurance — Personal injury protection — Provider is entitled to attorney’s fees incurred in action against insurer for failure to pay statutory penalty when it paid claim following receipt of plaintiff’s demand letter — Court rejects insurer’s argument that penalty is not the recovery of insurance benefits under the policy that would trigger award of attorney’s fees pursuant to section 627.428
5 STAR REHABILITATION CENTER, INC., a/a/o Jessika J. Francisco, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 11-06505 SP 26 (04). February 15, 2017. Lawrence D. King, Judge. Counsel: Tim Snedaker, Corredor, Husseini & Snedaker, P.A., Doral, for Plaintiff. Camille White, United Automobile Insurance Company Office of General Counsel, Miami, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO TAXATTORNEYS’ FEES AND COSTS (AS TO ENTITLEMENT)
This matter came before the Court on February 13, 2017 for hearing and consideration on Plaintiff’s Motion to Tax Attorney’s Fees and Costs. The Court has reviewed the motion, has considered arguments of counsel, the Court file and pleadings, and otherwise being apprised of the premises hereby enters the following ruling.
The Plaintiff filed a two count complaint. The second count alleged that United Automobile Insurance Company failed to pay the 10% statutory penalty when it made a payment on the claim following receipt of a Plaintiff’s demand letter under Florida Statute 627.736(10). The Court granted summary judgment for the Plaintiff on that issue [21 Fla. L. Weekly Supp. 82c] and a final judgment was entered in the Plaintiff’s favor on that issue.
The Plaintiff filed its Motion to Tax its Attorneys’ Fees. United Automobile did not concede that the Plaintiff was entitled to attorney fees. The Court grants the Plaintiffs motion as to entitlement.
Florida Statute 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. (emphasis added).
In this case, there was a judgment entered against the insurer United and in favor of an insured. The statute plainly states that fees shall be awarded against the insurer.
In addition, Florida Statute 627.736(8) states:
APPLICABILITY OF PROVISION REGULATING ATTORNEY FEES. — With respect to any dispute under the provisions of ss. 627.730–627.7405 between the insured and the insurer, or between an assignee of an insured’s rights and the insurer, the provisions of ss. 627.428 and 768.79 apply. . .(emphasis added).
This case involved a “dispute” within the provisions of ss. 627.730-627.7405. Accordingly, section 627.428 applies and fees are to be awarded to the Plaintiff. Florida law is clear that in “any dispute” which leads to judgment against the insurer and in favor of the insured, attorney’s fees shall be awarded to the insured. Ivey v. Allstate Ins. Co., 774 So. 2d 679, 684 (Fla. 2000) [25 Fla. L. Weekly S1103a]; Dunmore v. Interstate Fire Ins. Co., 301 So. 2d 502, 502-03 (Fla. 1st DCA 1974).
United argues that the 10% penalty is not the recovery of insurance benefits under the policy and that an award of fees depends on a recovery of benefits under the policy. It relies on two cases in opposition. The first is Petty v. Florida Insurance Guaranty Association, 80 So.3d 313 (Fla. 2012) [37 Fla. L. Weekly S34a]. The second is United Automobile Insurance Company v. ISO Diagnostic Testing, Inc. a/a/o Yoanne Quevedo, 23 Fla. L. Weekly Supp. 1000c (Fla. 17th Jud. Cir. (Appellate) Mar. 21, 2016).
Petty is not applicable. It dealt with whether FIGA was responsible for the insured’s attorney fees, as it typically is not. There, the Supreme Court found that FIGA was not required to pay attorney fees because the payment of fees was not part of a “covered claim” as defined by section 631.57 and 631.54. The issue in this case does not involve a whether fees are a “covered claim” by FIGA. Sections 627.736(8) and 627.428 are right on point. Even if Petty was applicable, it would not prevent the award of fees in this case because section 627.7407(2) mandates that PIP polices after January 1, 2008 incorporate the No-Fault Law. By virtue of the statutory incorporation, United’s policy does provide for the recovery of fees. Indeed, Petty recognizes this in the workers compensation insurance context in footnote 4.
United v. ISO Diagnostic Testing is on point, but this court is not persuaded by its rationale. First, it applies Petty to PIP. Second, it holds that the 10% penalty is not part of the policy benefits, and fees cannot be awarded in that instance. This is contravened by Magnetic Imaging Sys., I, Ltd. v. Prudential Prop. & Cas. Ins. Co., 847 So. 2d 987, 989 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D679a]. There, the Third District held that payment of PIP interest (not a policy benefit, but rather a statutory benefit) triggered the award of fees under section 627.428. It is also contrary to Rodriguez v. Geico, 80 So.3d 1042 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D2788a]. There, the Fourth District held that a $0.00 judgment in favor of the insured on the insurer’s claim mandated the award of fees under 627.428. Finally, another panel the 17th Judicial Circuit in their appellate capacity awarded appellate attorneys fees for the late payment of the 10% penalty in USAA General Indemnity Company v. Cohen Chiropractic Group, P.A. a/a/o Emy Fahie, 23 Fla. L. Weekly Supp. 522e (Fla. 17th Jud. Cir. (Appellate) Aug. 15, 2015).
WHEREFORE, IT IS ORDERED AND ADJUDGED that Plaintiff’s Motion to Tax Attorneys Fees and Costs (as to Entitlement) is GRANTED.
