4 Fla. L. Weekly Supp. 381a
Insurance — Personal injury protection — Attorney’s fees — Insured’s action against insurer — Where jury found insured entitled to $1000 in damages for his medical bills, but insured recovered nothing because policy had $2000 deductible, insured was not entitled to award of attorney’s fees
BERMAN VOLTAIRE, Appellant, vs. FORTUNE INSURANCE COMPANY, Appellee. 17th Judicial Circuit in and for Broward County, Appellate Division. Case No. 94-11032 (25). L.T. Case No. 93-7755. February 8, 1996. George A. Brescher, Judge.
FINAL OPINION
This is an appeal by the Plaintiff, Bermann Voltaire from a final judgment of the Broward County Court. The Court having heard argument of counsel, and being fully advised on the premises, hereby finds:
On June 14, 1994, the jury had determined the plaintiff was a passenger in a motor vehicle at the time it was involved in an automobile accident on October 4, 1992. The jury determined the plaintiff was entitled to $1,000 in damages for his medical bills. The Policy of Insurance issued by Fortune Insurance Company contained a $2,000 deductible. On August 30, 1994, the trial court entered a final judgment in favor of defendant, Fortune Insurance Company. The trial court stated that the bills found to be reasonable and necessary do not exceed Plaintiff’s deductible, and plaintiff is not entitled to the monetary relief requested in the complaint.
The issue presented is whether the plaintiff/appellant is entitled to attorney’s fees regardless of a zero recovery.
In an action on an insurance policy, the jurisdiction of the trial court to require the insurer to pay a reasonable attorney’s fee of the opposing insured or beneficiary exists only as created and provided for by statute. Such a fee award pursuant to statute is recognized as a penalty provision. See Travelers Indem. Co. v. Chisholm, 384 So.2d 1360 (Fla. 2d DCA 1980). Section 627.428(1), Fla. Stat. (1979), provides in pertinent part:
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…, the trial court…shall adjudge…against the insurer and in favor of the insured …a reasonable sum as fees…for the insured’s…attorney prosecuting the suit in which recovery is had.
This statute must be strictly construed. See Travelers Indem. Co., citing, American Bankers Insurance Co. v. Benson, 254 So.2d 851 (Fla. 3d DCA 1971). Under the above statute, the jurisdiction of the trial court to award attorney’s fees to an insured is dependent upon conditions imposed by the statute. The paramount condition is the entry of a judgment against the insurer, and in favor of the insured. See Midwest Mutual Insurance Co. v. Santiesteban, 287 So.2d 665 (Fla. 1973). In the instant case, the insured, Berman Voltaire never recovered a judgment against the insurer, Fortune Insurance Company. While the jury determined the plaintiff’s damages were $1,000, a deductible of $2,000 was applied, which yielded a zero recovery for plaintiff, and a zero judgment against the insurer.
One of the prime considerations in understanding plaintiff’s recovery is the understanding of the nature of the $2,000 deductible which was applied to the $1,000 of damages the jury awarded. The $2,000 deductible was the portion of the insurance coverage which is allocated to the insured. The $2,000 deductible rendered plaintiff self-insured, and personally accountable for the expenses incurred up to the amount of the deductible. See Insurance Company of the State of Pennsylvania v. Weiss, 21 Fl. Supp. 2d 170 (Fla. 11th Circuit 1987). Generally, the functional purpose of a deductible is to alter the point at which an insurance company’s obligation to pay will ripen. See International Bankers Ins. Co. v. Arnone, 552 So.2d 908 (Fla. 1989). In the case at bar, the insurance company’s obligation to pay did not ripen, and plaintiff had a zero recovery. The liability of the insurance company under these circumstances was none. Section 627.428, Fla. Stat. providing an award of attorney fees upon rendition of a judgment against an insurer in favor of a named insured did not apply in the case in which an insurer was not liable. See Cronin v. Washington Nat. Ins. Co., 980 F.2d 663 (Fla. 11th Cir., C.A. 1993).
The prevailing party test, prevailing on significant issues in litigation does not apply to an award of attorney fees under the statute entitling prevailing insured or beneficiary to attorney fees in suit against insurer. See Danis Industries Corp. v. Ground Improvement Techniques, Inc., 645 So.2d 420 (Fla. 1994).
Section 627.428, Fla. Stat. must be strictly construed, and in this case no judgment was rendered against the insurer, Fortune Insurance Company. Recovery and entry of judgment in the action are conditions precedent to the making of an attorney’s fee award. The plaintiff did not recover a judgment for which legal costs and charges may be allowed under section 627.428, Fla. Stat.
As such, it is hereby:
ORDERED AND ADJUDGED, the Final Judgment entered by the County Court is AFFIRMED, this Appeal is DISMISSED.
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