3 Fla. L. Weekly Supp. 146b
Insurance — Personal injury protection — Insolvent insurers — Attorney’s fees — Where insured brought action against insurer for failure to pay PIP benefits, and, after lawsuit was filed, Florida Insurance Guaranty Association took over insurer and paid the claim, insured was not entitled to recover attorney’s fees from FIGA — Statute excluding attorney’s fees claims for any covered claim unless FIGA specifically denies the claim by affirmative action applies in situations where FIGA takes over insolvent insurer after commencement of a lawsuit
ELIECER MUNOZ, Appellant, v. AMERICAN HARBOR INSURANCE COMPANY f/k/a GUARDIAN PROPERTY AND CASUALTY INSURANCE COMPANY AND FLORIDA INSURANCE GUARANTY ASSOCIATION, Appellee. 11th Judicial Circuit in and for Dade County, Appellate Division. Case No. 94-065AP. Opinion filed April 21, 1995. Appeal from County Court – Civil, Dade County, Honorable Lauren Levy Miller, Judge. Counsel: Jose R. Iglesia and Mari Sampedro-Iglesia, for appellant. John P. Joy, for appellee.
(Before W. THOMAS SPENCER, ELLEN L. LEESFIELD, and JOEL H. BROWN, JJ.)
Appellant Eliecer Munoz was involved in an automobile accident in Dade County, Florida, in which he suffered injuries. At the time of the accident, Appellant was insured by American Harbor Insurance Company f/k/a Guardian Property and Casualty Insurance Company. This policy included personal injury protection benefits. Appellant accrued medical bills which American Harbor Insurance Company refused to pay. The Appellant filed suit against American Harbor Insurance Company f/k/a Guardian Property and Casualty Insurance Company seeking personal injury protection benefits in accordance with the policy. This occurred on November 23, 1992.
On or about February 10, 1993, after the filing of a lawsuit, Attorneys for Appellant received notice from the Department of Insurance that the company had been taken over by F.I.G.A. After this date, F.I.G.A. contacted the Appellant through counsel and informed them that it would be paying the medical bills, but would not pay attorney’s fees. Appellant filed an amended complaint on May 12, 1993, to include F.I.G.A. as a Defendant, demanding that they pay attorney’s fees. The Court below entered a Summary Judgment in favor of Appellee, since all medical bills were paid, and attorney’s fees were specifically excluded under F.S.631.70.
Florida Statute 631.70, is a statute under the F.I.G.A. Act, which is specially labeled (in bold print) “Attorney’s fee.”. It sets forth as follows:
F.S. 631.70 Attorney’s fee. — The provisions of F.S. 627.428 providing for an attorney’s fee shall not be applicable to any claim presented to the association under the provisions of this part, except when the association denies by affirmative action, other than delay, a covered claim, or a portion thereof.
This statute specifically excludes attorney’s fees for any covered claim unless F.I.G.A. specifically denies, by affirmative action, the claim.
Attorneys for Appellant have set forth in oral argument that in this case, because the claim arose prior to F.I.G.A.’s take over that this was not a “claim presented” to F.I.G.A., but rather a duty and obligation taken over by F.I.G.A. Therefore, they assert that F.S. 631.70, should not apply in situations where F.I.G.A. takes over an insolvent carrier after the commencement of a lawsuit. No authority is cited for this proposition, and this Court must decline to take that view. Florida Statute 631.70, was specifically designed to exclude attorney’s fees, unless F.I.G.A. affirmatively denies a claim. F.I.G.A. did not deny a claim in this case, and in fact, readily paid the claim — even before demand. We interpret the statute to mean what it says. This is especially so, where a specific statute has been created to address the issue. There is no legal basis for reversal of the Summary Judgment entered by the Court below. Therefore, WE AFFIRM. (W. THOMAS SPENCER, ELLEN L. LEESFIELD and JOEL H. BROWN, JJ., Concur.)
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