26 Fla. L. Weekly Supp. 229a
Online Reference: FLWSUPP 2603HOLLInsurance — Personal injury protection — Attorney’s fees — Where insurer confessed judgment as to medical provider’s entitlement to penalty and postage, provider is entitled to award of attorney’s fees under section 627.428 — Even under case law holding that to be entitled to award of fees under section 627.428 a party must obtain PIP benefits that are provided for in PIP policy, provider is entitled to award of fees where PIP policy at issue makes payment of penalty a PIP benefit
OPEN MRI OF MIAMI-DADE, LTD. a/a/o Torey Hollis, Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 16-017634 SP 23 (05). May 22, 2018. Renatha S. Francis, Judge. Counsel: Vincent Rutigliano, Rosenberg & Rosenberg, P.A., Hollywood, for Plaintiff. Blake Manuel Gomez, for Defendant.
ORDER ON PLAINTIFF’S MOTION FORSUMMARY JUDGMENT REGARDING ENTITLEMENTTO ATTORNEY’S FEES
This cause came before the Court on Open MRI of Miami-Dade, (“Plaintiff”)’s Motion for Summary Judgment Regarding Entitlement to Attorney’s Fees. After carefully considering the attorneys’ arguments, reviewing the relevant law, and examining the record, this Court grants FINDS, ORDERS, and ADJUDGES that Plaintiff is entitled to its attorney’s fees for the reasons that follow:
The basic facts are not in dispute: Plaintiff provided an MRI to the insured, Torey Hollis, on March 25, 2016, and billed GEICO General Insurance Company (“Defendant”) on the basis that the medical treatment was reasonable, related, and necessary (“RRN”). Defendant subsequently issued a benefit and interest payment of $997.88, but only after Plaintiff filed a demand pursuant to section 627.736(10); notably missing from Defendant’s payment, however, was the penalty and postage, which Plaintiff had also demanded. So the instant suit was initiated to recover the unremitted amounts.
Defendant eventually confessed judgment as to the unpaid penalty and postage, and this Court entered final judgment on that issue on December 6, 2017. Notwithstanding its confession, Defendant contested Plaintiff’s entitlement to attorney’s fees.
The issue here is whether attorney’s fees are awardable under the facts outlined above. It is the opinion of this Court that it does.
The starting point of any statutory analysis is with the statutes themselves. Relevant here, are sections 627.736(8) and 627.428, Florida Statutes.
Section 627.736(8)1 specifically provides that “[in] any dispute under the provisions of ss. 627.730-627.7405 . . . between an assignee of an insured’s rights and the insurer, the provisions of ss. 627.428 . . . apply . . . .” § 627.736(8), Fla Stat. (Emphasis added). In turn, section 627.428 provides that upon rendition of a judgment or decree
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 the recovery is had.”
§ 627.428(1), Fla. Stat. (Emphasis added).
Read together, the statutory mandate is clear and unambiguous: any dispute must include disputes, such as this one, that centers on the entitlement and payment of penalty and postage. See generally, Forsythe v. Longboat Key Beach Erosion Ctrl. Dist., 604 So. 2d 452, 455 (Fla. 1992) (“It is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole. Where possible, courts must give fill effect to all statutory provisions and construe related statutory provisions in harmony with one another.”) (Citations omitted).
This reading is consistent with precedent from our supreme court. See Ivey v. Allstate Ins. Co., 774 So. 2d 679, 684 (Fla. 2000) [25 Fla. L. Weekly S1103a] (“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 . . . This Court finds that Florida Statute 627.736(8) and 627.428 are clear and unambiguous and this Court is therefore not free to modify or limit the express terms of Florida Statute 627.736(8) and 627.428.”); see also USAA Gen. Indem. v. Cohen Chiropractic, 23 Fla. L. Weekly Supp. 522e, (Fla. 17th Jud Cir. (Appellate) Aug. 10, 2015) (awarding appellate attorney’s fees for a successful appeal regarding penalty).
Of course, this Court is also aware that conflicting opinions exist to the one being advanced here; GEICO presented them. See, e.g., United Auto Ins. Co. v. ISO Diag. Testing, Inc., 23 Fla. L. Weekly Supp. 1000c (Fla. 17th Jud. Cir. (Appellate) Mar. 21, 2016).
Apart from the obvious conflict within the appellate division of the seventeenth judicial circuit, this Court also finds that ISO Diagnostic conflicts with the unambiguous statutory language of sections 627.736(8) and 627.428, and Supreme Court precedent. This Court is further unpersuaded by ISO Diagnostic because in reaching its conclusion that medical providers can only obtain a judgment for “PIP benefits,” it relied upon a supreme court case that is completely inapposite to the PIP statutes.
Specifically, ISO Diagnostic relied upon Petty v. Florida Insurance Guaranty Association, 80 So. 3d 313 (Fla. 2012) [37 Fla. L. Weekly S34a], which held — in the context of a homeowners’ insurance policy — that the insured’s statutory claim to attorney’s fees was not a “covered claim” within the meaning of the Florida Insurance Guaranty Association (“FIGA”) Act, chapter 631.57, which the defendant was required to pay. Id. at 315-16.
Petty is distinguishable, however, because it addressed a situation not present here: the application of FIGA’s section 631.57(1)(a)1.a. to limit recovery of attorney’s fees under section 627.428. Because FIGA is a creature of statute, its obligations to pay insureds on behalf of insolvent insurers is specifically, and statutorily, limited to “covered claims” as defined.2 See §§ 631.57(1)(a)1.a., and 631.54(3), Fla. Stat. (2017).
No such limitation exists here. The relevant statutes are sufficiently broad to encompass any dispute, which necessarily must include the one in this case.
Finally, even if this Court were persuaded by ISO Diagnostic, Plaintiff would still be entitled to its attorney’s fees. That’s because ISO Diagnostic held that for the purpose of entitlement to an award of attorney’s fees, a party must obtain “PIP benefits” that were provided for in the insurance contract and not just by statute. 23 Fla. L. Weekly Supp. 1000c. This Court’s reading of the instant policy shows that Defendant made the payment of “penalty” a “PIP benefit.” See Florida Policy Amendment Section II — Personal Injury Protection Coverage, pp. 5
If, within 30 days after receipt of notice by us, the overdue claim specified in the notice is paid by us together with applicable interest and a penalty of 10 percent of the overdue amount paid by us, subject to a maximum penalty of $250, no action may be brought against us.
Thus, Defendant’s own policy provision makes “penalty” a “PIP benefit.”
For all these reasons, Plaintiff’s Motion for Summary Judgment is GRANTED. Plaintiff is entitled to reasonable attorney’s fees.
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1627.736(8) is a part of Florida’s Motor Vehicle No-Fault law and specifically incorporated in all personal injury protection policies pursuant to Florida Statute 627.7407(2).
2Section 631.57 — entitled, “Powers and duties of the association” — address the powers and duties of FIGA, which was created by the FIGA Act. One of FIGA’s purposes is to pay covered claims under certain insurance policies to avoid excessive delay in payment and avoid financial loss to claimants/policyholders because of the insolvency of an insurer. See § 631.51(1), Fla. Stat. (2017).
