25 Fla. L. Weekly Supp. 513g
Online Reference: FLWSUPP 2506BURKInsurance — Personal injury protection — Attorney’s fees — Where insurer declined to pay based on claim that insured made material misrepresentation in her policy application, trial court did not err in awarding attorney’s fees and costs incurred in proving validity of policy
UNITED AUTOMOBILE INSURANCE COMPANY, a foreign insurer, Appellant, v. RIVERSIDE MEDICAL ASSOCIATES, INC. a/s/o Normadel Burke, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE-14-010344 (AP). L.T. Case No. COCE-04-010641 (54). October 17, 2016. Clarified November 29, 2016. Appeal from the County Court for the 17th Judicial Circuit, Broward County. Cary Cowart, Judge.1 Counsel: Thomas L. Hunker, Cole, Scott & Kissane, P.A., Plantation, for Appellant. Henry A. Seiden, Seiden Law, Delray Beach, for Appellee.OPINION
Having carefully considered the briefs, the record, and the applicable law, this Court dispenses with oral argument, the final judgment in favor of the defendant [Editor’s note: See order on motions for rehearing and clarification published below] is hereby AFFIRMED as set forth below.
Subsequent to an automobile accident on September 23, 2003, Normadel Burke (“Insured”) sought medical treatment at Riverside Medical Associates (“Riverside”). The Insured assigned the PIP benefits under her UAIC policy to Riverside. The Insured’s policy contained a $2,000 deductible. The total amount Riverside billed UAIC for medical services to the Insured was $1,574 and rendered over a course of eight chiropractic visits. The Insured also received medical treatment from Stand Up in the amount of $1,219. The total bill for all medical providers was $2,793. Eighty percent of the total bill is $2,234.42. UAIC declined to pay the bills claiming that the Insured made a “material misrepresentation” in her policy application and because her bills were not reasonable, related, or necessary. On August 12, 2004, the Insured settled with Stand Up for $600. Stand Up never sued for the balance of its bill within the five-year statute of limitations. UAIC argued that the balance of Stand Up was extinguished by the expiration of the statute of limitations.
On June 29, 2004, Riverside filed its complaint against UAIC, alleging the total amount billed for rendering services to the Insured was $1,399. UAIC argued that it settled its claim with Stand Up for $600 and therefore, the remaining $619 of its bill was entirely discharged and was not to be applied to the accumulating 80% total of the bill, effectively reducing the amount owed below the policy deductible and discharging UAIC’s duty to pay, along with reversing the award of attorney’s fees.
On February 2, 2011, the trial court granted Riverside’s motion for final summary judgment and awarded it $94.42 for unpaid medical expenses that exceeded its deductible. The trial court reserved jurisdiction to consider attorney’s fees and costs upon motion and notice. On August 18, 2011, the trial court ruled that Riverside is entitled to $58,972.50 in attorney’s fees, $5,248.30 in taxable costs, and $2,074.82 in prejudgment interest, for a total recovery of $66,295.62.
UAIC appealed the final judgment on the issue of the deductible; it did not appeal the trial court’s determination of summary judgment as to the validity of the insurance policy. Judge Richard D. Eade, sitting in his appellate capacity, held oral argument on the legal issue of whether the trial court should apply the settlement amount of $600 to the deductible or 80% of the total bill of $1219. The Court reversed the trial court finding that UAIC properly applied the deductible. UAIC v. Riverside Med. Assoc., a/a/o Normadel Burke, 20 Fla. L. Weekly Supp. 389a (Fla. Cir. Ct. 2012), cert, den. No. 4D13-31 (Fla. 4th DCA Jan. 9, 2013). The Fourth District Court of Appeal denied Riverside’s petition for certiorari.
On April 10, 2014 the trial court held a hearing on the parties’ cross motions for final judgment and the trial court ruled that Riverside should receive $0, but granted Riverside’s motion for attorney’s fees. UAIC’s motion for rehearing was denied. On April 24, 2014, UAIC filed its “Emergency Motion to Enforce Mandate,” which was denied by Judge John T. Luzzo. UAIC filed this appeal on May 28, 2014 claiming that Riverside did not recover a judgment for which legal costs and charges may be allowed under Florida Statutes § 627.428.
An award of attorneys’ fees is within the sound discretion of the trial court and will not be reversed on appeal in the absence of a showing of clear abuse of discretion. DiStefano Constr., Inc. v. Fidelity & Deposit Co. of Maryland, 597 So. 2d 248 (Fla. 1992).
After the mandate from the prior appeal the trial court found that Riverside incurred substantial attorney’s fees and costs in its attempt to prove the validity of the policy. The trial court further found that in not appealing the entry of a motion for summary judgment in favor of Riverside, UAIC waived its entitlement to pursue the trial court’s decision. Attorneys’ fees are recoverable under Florida Statutes 627.428(1) for court proceedings to compel arbitration or determine coverage. State Farm Mut. Auto Ins. Co. v. Anderson, 332 So. 2d 623, 625 (Fla. 4th DCA 1976), disapproved on other grounds 579 So. 2d 77.
[Editor’s note: See order on motions for rehearing and clarification published below.]
Accordingly, for the above-stated reasons and after due consideration this Court finds that the trial court’s order granting Riverside’s motion for entitlement to attorney’s fees and costs is AFFIRMED.
Appellant’s motion for attorney’s fees is hereby DENIED.
Appellee’s motion for attorney’s fees is hereby GRANTED. (BOWMAN and POWELL, JJ., concur. HAURY, J. dissents with opinion.)
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1Judge Stephen J. Zaccor is currently the presiding judge in Division (54)
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(Haury, J., dissenting. The majority relies upon a broad legal principle in support of its determination to award attorney fees: Attorneys’ fees are recoverable under Florida Statutes §627.428(1) for court proceedings to compel arbitration or determine coverage. State Farm Mut. Auto Ins. Co. v. Anderson, 332 So. 2d 623, 625 (Fla. 4th DCA 1976), disapproved on other grounds 579 So. 2d 77. The problem is that this principle has no application to the facts of this case. This is not a proceeding to compel arbitration or determine coverage. The most important fact has been conveniently omitted from the opinion. That fact is that this is a single count breach of contract action to recover on an unpaid medical bill and not a Petition to determine coverage. As indicated above no damages were awarded.
Section 627.428 provides:
(1) Upon the rendition of a judgment or decree by any of the courts of the 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 recovery is had. (Emphasis added.)
Since no recovery has been had there can be no proper award of attorney fees. Prevailing on an affirmative defense does not equate to a recovery. I fear that the majority opinion will further encourage marginal, attorney fee driven, PIP litigation which is overwhelming current resources. I respectfully dissent.
__________________ORDER ON APPELLANT’S MOTION FOR REHEARINGAND APPELLEE’S MOTION FOR CLARIFICATION
THIS CAUSE comes before this Court on the “Appellant’s Amended Motion for Rehearing,” filed on October 18, 2016 and “Plaintiff/Appellee Riverside’s Motion for Clarification,” filed on October 21, 2016. After having reviewed the motion, the court file, applicable law, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that:
1. the “Appellant’s Amended Motion for Rehearing” is DENIED and
2. the “Plaintiff/Appellee Riverside’s Motion for Clarification” is GRANTED only to the extent that the first paragraph should be corrected to read:
Having carefully considered the briefs, the record, and the applicable law, this Court dispenses with oral argument, the final judgment in favor of the Plaintiff is hereby AFFIRMED as set forth below.
And the Opinion ruling should be clarified to read as follows:
Accordingly, for the above-stated reasons and after due consideration this Court finds that the trial court’s Final Judgment in favor of Riverside is AFFIRMED. Attorney’s fees to be determined by the trial court upon REMAND.
Further, UAIC’s motion for appellate attorney’s fees is hereby DENIED and Riverside’s motion for appellate attorney’s fees is GRANTED in an amount to be determined by the trial court upon REMAND.
3. In all other respects the October 17, 2016 Opinion should remain unchanged.
