3 Fla. L. Weekly Supp. 88a
Attorney’s fees — Insurance — Party who was injured at dog track was omnibus insured under policy which provided insurance coverage, including medical payments coverage, for persons injured on premises — Party who prevailed in action against insurer to recover medical payment insurance benefits is entitled to attorney’s fees
NATIONAL UNION FIRE INSURANCE CO. OF PITTSBURGH, PENNSYLVANIA, Appellant, vs. SHIRLEY BRACKETT, Appellee. 11th Judicial Circuit, Appellate Division. Case No. 93-333AP. Opinion filed April 7, 1995. An Appeal from County Court for Dade County, Florida, Roger A. Silver, Judge. Counsel: Edward R. Nicklaus, for appellant. David F. Baron, for appellee.
(Before MICHAEL A. GENDEN, MICHAEL B. CHAVIES and ALAN S. GOLD, JJ.)
(PER CURIAM.) This is an appeal from the order of the County Court which granted Appellee’s motion for attorney’s fees and to tax costs.
The facts of this case are as follows: The action below began when the appellant filed a lawsuit against National Union seeking medical payment insurance benefits. Appellant alleged that she had been injured on the premises of the Biscayne Greyhound Track. Additionally, appellant argued that National Union provided insurance coverage, including medical payments coverage, for persons injured on the premises of this dog track. Furthermore, appellant asserted that a claim had been submitted but that National Union failed and refused to pay said benefits. National Union filed a motion to dismiss which was denied, and subsequently appellee filed a motion for attorney’s fees arguing that when National Union failed to honor the benefits claim, appellee was forced to file a lawsuit. Subsequently, National Union tendered the subject insurance benefits, however the question of attorney fees remained at issue. The court below denied National Union’s Motion To Strike Attorney’s Fees and awarded five thousand two hundred fifty ($5,250.00) in attorney’s fees and one hundred twenty ($120.00) in taxable costs. National Union then filed its notice of appeal seeking review of both the award of fees and the order denying the motion to strike.
National Union argues that attorney fees cannot be awarded in this cause since appellee is not an insured but rather is only a third party claimant to the contract between National Union and Biscayne Greyhound Track. The appellee counters this argument by asserting that section 627.428, Florida Statutes requires an award of attorney’s fees when an insured’s forced to sue an insurer to recover insurance benefits. Appellee takes the position that she falls under the umbrella of an omnibus insured, and therefore should be covered and thus entitled to attorney fees.
Section 627.428, Fla. Stat. provides for an award of attorneys fees against an insurer in an action where any “named or omnibus insured” prevails. Although neither the statute nor the National Union policy define the term “omnibus insured”, we must reach the conclusion that people in the position of Shirley Brackett were intended to be included within this definition. In the instant case, National Union agreed to make medical payment benefits to persons such as Ms. Brackett who were injured on the premises of Biscayne Kennel regardless of fault. Indeed, in this case, National Union did in fact pay insurance benefits, however they only did so after appellant instituted proceedings. Although National Union vigorously argues that Brackett cannot recover attorney fees since she is not a named insured, or one who fits under the definition of “omnibus” insured, this court cannot agree with that analysis. Ms. Brackett was forced to litigate the issue of insurance payment benefits, she in fact received insurance payment benefits and subsequently was awarded attorney fees. There is clearly ample authority for the proposition that persons other than a named insured should be entitled to attorney fees. Prygrocki v. Industrial Fire & Casualty Co., 407 So. 2d 345 (Fla. 4th DCA 1981); United States Fidelity and Guaranty Company v. State Farm Mutual Automobile Insurance Company, 369 So. 2d 410 (Fla. 3d DCA 1979). Indeed, in Wilder v. Wright, 269 So. 2d 434, 436 (Fla. 2d DCA 1972), the court observed:
“The purpose of the statute is to discourage contesting of valid claims of insureds against insurance companies and to reimburse successful insureds reasonably for their outlays for attorney’s fees when they are compelled to defend or to sue to enforce their contracts.”
In the instant case, the appellant was injured on the premises of the Biscayne Greyhound Track. The insurance policy in question provided for benefits to one injured on the dog track property. When payment was not made upon demand, appellant was forced to litigate to obtain medical benefits. This is exactly the type of situation sought to be advised by section 627.428, Fla. Statutes. The appellee was entitled to medical payment benefits based upon the contract of insurance and was forced to litigate in order to recover. She is therefore entitled to attorney fees.
We hold that appellant was within the category of an insured within the meaning of Section 627.428, Florida Statutes.
Accordingly, the court’s award of attorney fees and costs is affirmed.
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