25 Fla. L. Weekly Supp. 671b
Online Reference: FLWSUPP 2507DAVIInsurance — Personal injury protection — Attorney’s fees — Declaratory actions — Count for declaratory relief is not action for recovery of benefits for which attorney’s fees may be awarded under section 627.428 — Motion to strike demand for fees is granted
COUNTY LINE CHIROPRACTIC MEDICAL AND REHAB-EAST PLANTATION, INC a/a/o Florizel Davis, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. COCE16014677 (53). Robert W. Lee, Judge. Counsel: Max M. Nelson, Progressive PIP House Counsel, Fort Lauderdale, for Plaintiff. Howard W. Myones, Law Offices of Anidjar & Levine, Fort Lauderdale, for Plaintiff.
ORDER GRANTING DEFENDANT’S MOTION TOSTRIKE PLAINTIFF’S DEMAND FORATTORNEY’S FEES IN COUNT I
THIS CAUSE having come before the Court for a hearing on April 13, 2017, and the Court having reviewed the file, relevant authorities and heard argument of counsel, the Court hereby finds as follows:
This is a two-count PIP case. Count I is a Declaratory Relief action relating to the sufficiency of policy language, whereas Count II alleges breach of contract. Plaintiff alleges that “Because Count I is an action for declaratory relief under Chapter 86, it is not an ‘action for benefits’ under section 627.736 . . . .” Compl. ¶ 16. Count I includes a demand for attorneys’ fees pursuant to Fla. Stat. § 627.428. Compl. ¶¶ 42, 43.
By the clear language of the statute, Florida Statute § 627.428 is applicable only to suits in which “recovery is had.” By Plaintiff’s own admission, Count I is not an action for recovery of benefits. Therefore, this Court strikes Plaintiff’s fee demand within Count I. See Progressive American Ins. Co. v. Rural/Metro Corp. of Florida, 994 So. 2d 1202, 1209 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D2649a] (“In this case, because insurance proceeds were not at issue and because RMA was not entitled to recover any wrongfully withheld payment, section 627.48 does not apply.”); accord MGA Ins. Co. Inc. v. Massagee, 19 Fla. L. Weekly Supp. 1006a (18th Cir. App. 2012) (following Rural/Metro and denying motion for fees arising out of declaratory relief action); A-1 Imaging Centers, LLC (a/a/o Marissa Kim) v. USAA GIC, 22 Fla. L. Weekly Supp. 961a (Broward Cty. Ct. 2015) (relying on Rural/Metro to hold that “Defendant’s motion to strike plaintiff’s claim for attorney’s fees is granted [because] F.S. 627.428(1) does not apply where plaintiff will not recover any insurance proceeds which were wrongfully withheld”); Icon Medical Centers v. United Automobile Ins. Co., 2013 WL 4805063, *2-3 (Miami-Dade Cty. Ct. 2013) [20 Fla. L. Weekly Supp. 1086b] (in absence of recovery of insurance benefits, there is no recovery for fees); Contreras v. 21st Century Ins. Co. of California, 2008 WL 8490802 Seminole Cty. Ct. 2008) (following Rural/Metro, finding that without monetary recovery, there is no entitlement to attorney’s fees in a declaratory relief action).
The cases cited by Plaintiff at the hearing are clearly distinguishable as they do not address the specific issue involved in this case. Therefore, it is
ORDERED AND ADJUDGED that Defendant’s Motion is GRANTED. The Court hereby STRIKES Plaintiff’s demand for attorney’s fees within Count I of the Complaint.
