4 Fla. L. Weekly Supp. 218a
NOT FINAL VERSION OF OPINION
Subsequent Changes at 6 Fla. L. Weekly Supp. 35a
Attorney’s fees — Insurance — Personal injury protection — Voluntary dismissal of insurer’s counterclaim constituted an adjudication on the merits where insurer had voluntarily dismissed initial suit raising similar claims and involving same transaction — Because adjudication on the merits occurred with voluntary dismissal of insurer’s counterclaim, judgment was, in effect, entered for insured, precluding insurer from relitigating the issue and allowing insured to retain benefits previously paid — Insured entitled to recover attorney’s fees incurred in defense of counterclaim
JUAN J. VILLALOBOS, Plaintiff, vs. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. 12th Judicial Circuit in and for Sarasota County. Case No. 94-5376-CA-01. June 19, 1996. Peter A. Dubensky, Judge. Counsel: Perry Tanksley, Sarasota, for Plaintiff. David J. Abbey, Fox, Grove, Abbey, Adams, Byelick & Kiernen, St. Petersburg, for Defendant.
ORDER REGARDING DEFENDANT’S MOTION FOR ENTRY OF FINAL JUDGMENT FOR COSTS AGAINST THE PLAINTIFF AND PLAINTIFF’S MOTION FOR ENTRY OF FINAL JUDGMENT FOR ATTORNEY’S FEES AND COSTS
This cause came before the court on Defendant’s Motion for Entry of Final Judgment for Costs Against the Plaintiff, certificate of service date March 13, 1996, and Plaintiff’s Motion for Entry of Final Judgment for Attorney’s Fees and Costs, certificate of service date March 18, 1996. The Court has heard the arguments of counsel and is otherwise fully advised in the premises.
Under the two dismissal rule of Fla.R.Civ.P. 1.420(a)(1), the voluntary dismissal of Defendant’s counterclaim in Case No. 94-5376-CA-01 serves as an adjudication on the merits of that claim. Although the remedies requested by the dismissed actions may differ, where the claims raise similar issues and the underlying transaction is the same, the second dismissal is considered an adjudication on the merits. Variety Children’s Hospital v. Mount Sinai Hospital, 448 So. 2d 546 (Fla. 3d DCA 1984). In this case, both actions are based on the claim that Plaintiff was not an insured due to misrepresentations about his residency which he made on his application for No-Fault benefits. The Court finds that the issues raised by Defendant’s initial suit and subsequent counterclaim are similar and both claims involve the same transaction, the payment of Personal Injury Protection benefits to Plaintiff. Therefore, Defendant’s voluntary dismissal of the counterclaim invokes the two dismissal rule.
In order for Plaintiff to recover attorney’s fees under Section 627.428(1) Florida Statutes (1995), the Court must find that Plaintiff is an insured and obtained a judgment in his favor. As an adjudication on the merits, Defendant’s second voluntary dismissal precludes Defendant from bringing another suit based on this transaction and claiming that Plaintiff is not insured. See Variety Children’s Hospital, 448 So. 2d at 548. Thus, in light of Defendant’s payment of $15,386.04 of insurance benefits to Plaintiff, Plaintiff is in fact an insured as required by the statute.
The Court also finds that a judgment on Defendant’s counterclaim has been rendered in favor of the insured. For purposes of section 627.428(1), a “prevailing party” is defined “as one who has obtained a judgment greater than any offer of settlement previously tendered by the insurer.” Danis Industries Corp. v. Ground Improvement Techniques, Inc., 645 So. 2d 420, 421 (Fla. 1994). If there has been no offer of settlement tendered, any judgment in favor of the insured satisfies this criteria. See Danis Industries Corp. v. Ground Improvement Techniques, Inc., 629 So. 2d 985, 987 (Fla. 5th DCA 1993), aff’d, 645 So. 2d 420 (Fla. 1994).
Furthermore, the insured need not be the plaintiff in the action, but instead can prevail by maintaining a successful defense. See Florida Rock and Tank Lines, Inc. v. Continental Insurance Co., 399 So. 2d 122 (Fla. 1st DCA 1981) (holding defendant-insureds were entitled to attorney’s fees after successfully defending a suit for reimbursement by their insurer); Continental Janitorial Corp. v. Nationwide Underwriters, Inc, 368 So. 2d 112 (Fla. 4th DCA 1979) (holding defendant-insureds were entitled to attorney’s fees after the court entered a directed verdict against plaintiff-insurer in a suit for collection of premiums). Since an adjudication on the merits occurred with the voluntary dismissal of Defendant’s counterclaim, a judgment was in effect entered for Plaintiff precluding Defendant from relitigating the issue and allowing Plaintiff to retain the benefits he had been previously paid. Therefore, Plaintiff is entitled to an award of attorney’s fees under section 627.428(1) for defense of Defendant’s counterclaim. Plaintiff, however, cannot recover attorney’s fees for the prosecution of his claim because the Court made no adjudication as to the merits of that claim.
It is therefore
ORDERED AND ADJUDGED that Plaintiff’s Motion for Entry of Final Judgment for Attorney’s Fees and Costs is granted to the extent that Plaintiff is entitled to attorney’s fees and taxation of his costs arising from the defense of Defendant’s counterclaim. This Court reserves jurisdiction to determine the amount of such attorney’s fees and costs. Plaintiff’s Motion for Entry of Final Judgment for Attorney’s Fees and Cost is otherwise denied; it is further
ORDERED AND ADJUDGED that Defendant’s Motion for Entry of Final Judgment for Costs Against the Plaintiff is granted to the extent that this Court determines Defendant is entitled to taxation of their costs arising from the claim by Plaintiff against Defendant. The Court reserves jurisdiction to determine an appropriate amount of such costs.
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