28 Fla. L. Weekly Supp. 292b

Online Reference: FLWSUPP 2804DENNAttorney’s fees —

Insurance — Prevailing party — Where action against insurer for prejudgment interest resulted in order granting insurer’s motion for summary judgment but awarding prejudgment interest to plaintiff, trial court erred in denying plaintiff’s motion for award of attorney’s fees under section 627.428(1)

OASIS SOLUTIONS OF FLORIDA, INC., a/a/o Ralph and Dianne Dennis, Appellant, v. FIRST PROTECTIVE INSURANCE COMPANY, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACEI9-002507 (AP). L.T. Case No. COS015-007254. May 1, 2020. Appeal from the County Court for the Seventeenth Judicial Circuit, Broward County; Terri-Ann Miller, Judge. Counsel: G. Bart Billbrough, Billbrough & Marks, P.A., Coral Gables, for Appellant. Jay M. Levy, Jay M. Levy, P.A., Miami, for Appellee.

OPINION

(PER CURIAM.) Oasis Solutions of Florida, Inc. (“Oasis”) appeals a final order on Plaintiff’s Motion for Entitlement to Attorney’s Fees. Having carefully considered the briefs, the record, and the applicable law, this Court dispenses with oral argument and the final order is hereby REVERSED as set forth below.

In the proceedings below, Oasis filed suit for breach of contract to recover post loss insurance benefits from First Protective Insurance Company (“First Protective”) pursuant to an assignment of benefits from Ralph and Dianne Dennis due to water damage at their home. Upon the parties’ cross motions for summary judgment, the county court granted First Protective’s motion, and awarded prejudgment interest to Oasis. Oasis filed its motion for entitlement to attorney’s fees pursuant to section 627.428(1), Florida Statutes (2019). First Protective filed its response in opposition to Oasis’ motion for entitlement to attorney’s fees. Following a hearing, the county court denied Oasis’ motion on the basis that the award of prejudgment interest was not a judgment. Oasis argues the prejudgment interest award was a judgment and therefore, it is entitled to attorney’s fees pursuant to section 627.428(1).

Section 627.428(1) states:

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 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 the recovery is had.

§ 627.428(1), Fla. Stat. (emphasis added). “A judgment is a court’s decision on the merits as to whether the plaintiff shall obtain the relief sought in the litigation.” Makar v. Inv’rs Real Estate Mgmt., Inc., 553 So. 2d 298, 299 (Fla. 1st DCA 1989) (citing Francisco v. Victoria Marine Shipping, Inc.,486 So. 2d 1386, 1391 (Fla. 3d DCA 1986)) (quoting Irving Trust Co. v. Kaplan, 155 Fla. 120, 125, 20 So. 2d 351, 354 (Fla. 1944)), review denied, 494 So. 2d 1153 (Fla. 1986)).

Although First Protective paid the remaining balance on the claim before it was served with the lawsuit, Oasis argues the payment did not include prejudgment interest and First Protective still owed money on the balance. Both the county court and First Protective agreed that Oasis was entitled to prejudgment interest. (R. PDF. 143-144). The order¹ granting First Protective’s motion for summary judgment is a final judgment that awarded Oasis relief it sought; the prejudgment interest. Since Oasis received a judgment, Oasis is entitled to attorney’s fees under section 627.428(1).

Accordingly, the final order on Plaintiff’s Motion for Entitlement to Attorney’s Fees is hereby REVERSED, and this case is REMANDED to the county court for further proceedings consistent with this Opinion. Appellant’s Motion for Appellate Attorney’s Fees is GRANTED, with the amount to be determined by the county court upon remand. (BOWMAN, LOPANE, and FAHNESTOCK, JJ., concur.)

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¹The Order granting First Protective’s motion for summary judgment and awarding Oasis prejudgment interest is not on appeal.