25 Fla. L. Weekly Supp. 900a
Online Reference: FLWSUPP 2510RODRInsurance — Personal injury protection — Attorney’s fees — Provider/assignee was entitled to award of attorney’s fees incurred in obtaining payment of overdue statutory penalty and postage
DOCTOR RALPH MINIET PRACTICE (a/a/o Yanet Rodriguez), Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2014-13632 SP25(01). November 1, 2017. Linda Diaz, Judge. Counsel: Jason Little, Coral Gables, and Marlene S. Reiss, P.A., Miami, for Plaintiff.ORDER GRANTING PLAINTIFF’S MOTION FORENTITLEMENT TO ATTORNEYS’ FEES AND COSTS
THIS CAUSE having come before the Court on November 1, 2017 on Plaintiff’s Motion for Entitlement to Attorneys’ Fees and Costs, and this Court, after having reviewed the Motions, heard argument of counsel, and being otherwise fully advised in the premises, the Court hereby
FINDS, ORDERS AND ADJUDGES AS FOLLOWS:
1. On October 17, 2014, Plaintiff filed its Complaint for Damages against Defendant. In its complaint Plaintiff seeks payment of overdue statutory penalty and postage due and owing as a consequence of Defendant’s payment of personal injury protection benefits.
2. On February 23, 2016, Defendant stipulated to Plaintiff’s entitlement to penalty and postage but maintains the position that Plaintiff was not entitled to recover attorneys’ fees.
3. The sole matter left for determination by the Court is whether Plaintiff is entitled to an award of attorney’s fees and costs arising out of Defendant’s February 23, 2016, Stipulation to Entitlement to Penalty and Postage. This Court finds that Plaintiff is entitled to an award of attorney’s fees and costs.
4. Florida Statute §627.428 (2017) provides, in pertinent part:
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. . .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 recovery is had. (emphasis added).
In addition, Florida Statute §627.736 (2012) 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 right and the insurer, the provisions of ss. 627.428 and 768.79 apply. . . (emphasis added).
5. It is a well settled tenet of statutory construction that the Court must look into the language of the statute and apply the plain meaning where no ambiguity exists. Blanton v. City of Pinellas Park, 887 So.2d 1224, 1230 (Fla. 2004) [29 Fla. L. Weekly S614a]; Woodham v. Blue Cross & Blue Shield of Florida, Inc., 829 So.2d 891, 897 (Fla. 2002) [27 Fla. L. Weekly S834a]. As set forth numerous times by the Florida Supreme Court, “courts must give full effect to all statutory provisions and construe related provisions in harmony with one another.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 456 (Fla. 1992); see also Sharer v. Hotel Corp. of America, 144 So.2d 813, 817 (Fla. 1962); Unruh v. State, 669 So.2d 242 (Fla. 1996) [21 Fla. L. Weekly S104a]; Holly v. Auld, 450 So.2d 219 (Fla. 1984); School Bd. Of Palm Beach County v. Survivors Charter Schools, Inc., 3 So.3d 1220, 1223 (Fla. 2009) [34 Fla. L. Weekly S251a].
6. Based on the plain language of both Florida Statute §627.428 (2017) and Florida Statute §627.736 (2012), Plaintiff is entitled to an award of attorney’s fees and costs. This case involved a “dispute” within the provisions of ss. 627.730-627.7405. Accordingly, Florida Statute §627.428 (2017) applies and fees must 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.lst DCA 1974).
7. The Florida Motor Vehicle No-Fault Law requires every insurance carrier to pay a statutory penalty when it makes a payment on a claim following the receipt of a Pre-Suit Demand letter pursuant to Florida Statute §627.736(10).
8. Defendant refused to stipulate to entitlement to attorney’s fees and costs arising out of this Stipulation. Defendant argues that Plaintiff is not entitled to attorney’s fees for the time it dedicated to procuring a Stipulation and subsequent litigation because statutory penalty is not considered a “policy benefit” or a “covered claim.”
9. Defendant’s line of reasoning stems from a fundamental misinterpretation of the Florida Supreme Court’s decision in Petty v. FIGA and its progeny. 80 So.3d 313 (Fla. 2012) [37 Fla. L. Weekly S34a]. Petty dealt with the interpretation of the FIGA statute. When the Florida Supreme Court determined in Petty that attorney’s fees and costs were not a “covered claim” under the policy of insurance, it did so in the context of interpreting the FIGA statute. FIGA’s statutory liability is limited to “covered claims,” which are defined by the statute, once it takes over an insolvent insurer. The FIGA statute has its own attorney fee provision. See Fla. Stat. §631.70. Therefore, attorney’s fee liability on the part of FIGA is governed by that provision and not Fla. Stat. §627.428.
10. The provisions of the entire PIP Statute are incorporated into every PIP policy by virtue of Fla. Stat. §627.7407(2)(2012), and therefore any penalties or other damages provided for in the PIP Statute become part of the policy and recovery of any of those damages or penalties entitles the insured to its attorney’s fees. See State Farm Mut. Auto. Ins. Co. v. Curran, 83 So.3d 793 (Fla. 5th DCA 2011) [36 Fla. L. Weekly D195b], approved 135 So.3d 1071 (Fla. 2014) [39 Fla. L. Weekly S122a]. Even Petty recognizes this in the workers compensation insurance context in footnote 4 of the opinion.
11. Neither §627.428 nor §627.736 require the amount at issue in litigation of a personal injury protection dispute derive specifically from the $10,000.00 in available personal injury protection policy benefits. In 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], the Third District held that a confession of judgment of PIP interest (not a policy benefits but a statutory benefit) triggered the award of fees under §627.428. In Rodriguez v. Government Employees Ins. Co., the Fourth District held that a $0.00 judgment in favor of the insured on the insurer’s claim mandated an award of fees under §627.428. 80 So.3d 1042, 1044 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D2788a]. Numerous courts have found entitlement to attorney’s fees and costs when a judgment for penalty under Fla. Stat. §627.736(10) was obtained. See 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); 5 Star Rehabilitation Center, Inc. a/a/o Jessika J. Francisco v. United Auto. Ins. Co., 25 Fla. L. Weekly Supp. 91a (Fla. 11th Jud. Cir. County Ct. February 15, 2017); MR Services I, Inc. d/b/a C & R Imaging of Hollywood v. State Farm Mutual Auto. Ins. Co., 21 Fla. L. Weekly Supp. 1069b (Fla. 17th Jud. Cir. County Ct. June 4, 2014).
12. To allow an insurer to avoid exposure to §627.428 attorney’s fee liability would remove any incentive for an insurer to pay policy benefits timely. As such, the Court finds that the penalty provision of the Florida No-Fault Law is both valid and enforceable and enforces same with an award of attorney’s fees and costs to Plaintiff.
ACCORDINGLY, and based on the above findings of fact and conclusions of Law, it is hereby ORDERED and ADJUDGED that Plaintiff’s Motion for Entitlement to Attorney’s Fees and Costs is GRANTED.
