26 Fla. L. Weekly Supp. 256a
Online Reference: FLWSUPP 2604GARCInsurance — Personal injury protection — Attorney’s fees — Appellate — Prevailing party — Confession of judgment
SOUTH MIAMI HEALTH CENTER, INC. a/a/o Ophelia Garcia, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County, Appellate Division. Case No. 15-333 AP. L.T. Case No. 2009-05569 SP 25. May 21, 2018. An appeal from a decision by the County Court in and for Miami-Dade County. Laura Anne Stuzin, Judge. Counsel: George A. David, for Appellant. Nancy W. Gregoire, for Appellee.
(Before MINDY SUE GLAZER, ERIC W. HENDON, and MARISA TINKLER MENDEZ, JJ.)
OPINION
(PER CURIAM.) On January 23, 2008, Ophelia Garcia was involved in a motor vehicle accident in Miami-Dade County, Florida, in which Ms. Garcia sustained bodily injuries as a result of the accident. Appellant, Miami Health Center, Inc. (a/a/o Ophelia Garcia) (SMHC) requested that the deposition of Appellee, State Farm Mutual Automobile Insurance Co.’s claims adjuster occur in Miami-Dade County, Florida. Respondent insisted, and the trial court agreed, that the deposition should occur where the claims adjuster lived, in Hillsboro County. An appeal was then taken of the trial court’s order granting Appellee’s motion for protective order. Appellant filed a Motion for Appellate Attorney’s Fees pursuant to sections 627.736 and 627.738, Florida Statutes on December 12, 2011 concerning the appeal of this order.
Notwithstanding the merits of this appeal concerning the protective order, the Appellee filed a Notice of Confession of Judgment on December 11, 2012. Relying upon the confession of judgment, the Appellant dismissed the pending protective order appeal. It requested appellate attorney’s fees concerning this appeal, and on January 8, 2013 this Appellate Court denied Appellant’s motion for appellate attorney’s fees and costs and granted Appellee’s motion for appellate attorney’s fees and costs.
Appellant requested reconsideration of this ruling, and the reconsideration was denied. Consequently, Appellant filed this matter before this Court.
We review the interpretation and application of Florida law de novo. Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362, 367 (Fla. 2013) [38 Fla. L. Weekly S17].
Appellee avers that the petitioner had no motion for attorney’s fees pending in the underlying certiorari proceeding concerning the protective order, and therefore there would be no reason to agree to any entitlement to any attorney’s fee for the appellate matter in its confession of error. Appellee incorrectly asserts in its Answer Brief that it confessed judgment on December 11, 2012, and on December 12, 2012, the day after it filed its confession of judgment, the Appellant filed its motion for appellate attorney’s fees.
Appellee also argues that attorney’s fees were not requested in the Petition for Writ of Certiorari or Reply, and that the Appellant was not the prevailing party in the certiorari proceedings. It contends that if the writ of certiorari would have been decided on the merits, it would have been the prevailing party on appeal and entitled to attorney’s fees as this Court concluded.
The court in Professional Medical Group, Inc. v. United Automobile Insurance Co., 967 So. 2d 243, 244 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D2066a] held that in an appeal in which an 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.
Likewise, the court in Hollywood Injury Rehabilitation Center v. United Automobile Insurance Co., 985 So. 2d 1221 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D1798a] held that section 627.428, Florida Statutes (2007) mandates that an insured be awarded attorneys’ fees when he or she is the prevailing party on appeal in an action against his insurer. The court did not confine recovery to an appeal which is brought by an insurer, see Arango below.
Arango v. United Automobile Insurance Co., 901 So. 2d 320, 321 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D1129a] held that section 627.428, Florida Statutes mandates that an insured be awarded attorney fees when he or she is the prevailing party on appeal in an action against his insurer. Section 627.428 becomes applicable when a party files its notice of appeal. The prevailing party clause in the appellate fee portion of section 627.428, which mandates a fee award “in the event of an appeal in which the insured or beneficiary prevails,” was construed in Arango to include cases in which an insurer commences an appeal, but the appeal is then dismissed without a decision on the merits. Here Appellant, as assignee of the insured, commenced the appeal and the appeal was then dismissed without a decision on the merits.
Appellant was the prevailing party on appeal upon Appellee’s confession of judgment. It does not matter which party would have recovered in the writ of certiorari proceeding; the insured is the prevailing party in the action, and is entitled to appellate attorney’s fees following section 627.428, Florida Statutes. Appellant’s motion for appellate attorney’s fees was timely in the writ of certiorari proceeding.
REVERSED and REMANDED for proceedings consistent with this Opinion.
Appellant’s motion for appellate attorney’s fees is GRANTED.
