6 Fla. L. Weekly Supp. 604b
Attorney’s fees — Insurance — Personal injury protection — Insured’s complaint, although imperfectly pled, gave insurer sufficient notice of cause of action for attorney’s fees under no-fault law where complaint alleged that insurer failed to pay benefits in accordance with Florida Automobile Reparations Reform Act, further alleged that plaintiff had to retain counsel in order to compel payment of benefits and was entitled to recover reasonable attorney’s fees for prosecution of action, and requested attorney’s fees in “WHEREFORE CLAUSE,” which demanded court costs, attorney’s fees, and other reasonable relief
FORTUNE INSURANCE COMPANY, Appellant, vs. CLARA URQUIJO, as legal guardian of CATALINA URQUIJO, Appellee. 11th Judicial Circuit in and for Miami-Dade County, Appellate Division. Case Nos. 98-378 AP & 98-423 AP. Lower Case No. 98-95SP26. Opinion filed July 16, 1999. An Appeal from County Court for Miami-Dade County, Florida, Michael J. Samuels, Judge. Counsel: Diane H. Tutt, and Edward N. Winitz, for appellant. Neil M. Gonzalez, for appellee.
(Before JEFFERY ROSINEK, ELLEN L. LEESFIELD and LEON FIRTEL, JJ.)
(PER CURIAM.) Appellant, FORTUNE INSURANCE COMPANY (“Fortune”), seeks reversal of the trial court’s determination that the Appellee, CLARA URQUIJO, as legal guardian, of CATALINA URQUIJO (“Urquijo”) properly pled attorney’s fees in the action below. We find the Urquijo’s complaint, while imperfectly pled, gave sufficient notice to Fortune of a cause of action for attorney’s fees under the Florida No-Fault Law, §§ 627.730-627.7405, Fla. Stat. (1998) (“the Act”).
Urquijo was injured in an automobile accident which occurred on July 16, 1996. Fortune, Urquijo’s insurer, refused to pay PIP benefits, medical bills in the amount of $134.00 and Urquijo was compelled after 18 months of seeking benefits to hire legal counsel to prosecute a claim for PIP benefits. Urquijo filed a complaint on January 7, 1998, claiming that Fortune failed to pay for PIP benefits “in accordance with the Florida Automobile Reparation Reformed [sic] Act.” 1 Paragraph 10 of the complaint stated that,
That due to the Defendant’s failure to pay said benefits that Plaintiff’s credit have [sic] been damaged, and the Plaintiff has had to retain counsel to bring this action in order to compel payment of PIP benefits, and she is entitled to recover a reasonable attorney’s fee for the prosecution of this action.
Attorneys’ fees were also requested in the “WHEREFORE CLAUSE” which demanded,
WHEREFORE, The Plaintiffs, CLARA URQUIJO as legal guardian of CATALINA URQUIJO demands judgement against the Defendant, FORTUNE INSURANCE COMPANY within the jurisdiction of this Court together with Court costs, attorney’s fees, and other and reasonable relief this Honorable Court may deem just and proper.
A settlement of the July 16, 1996 claim was not entered until on or about March 2, 1998, after which Fortune’s delay in payment required the attorney to file a motion to enforce settlement. Finally, after payment of the PIP benefits, Fortune still refused payment of Urquijo’s attorney’s fees. Consequently, Urquijo filed a Motion for Attorney’s Fees and Taxable Costs. This motion was granted by the trial court on September 8, 1998 and Fortune was ordered to pay attorney’s fees in the amount of $1,300.00 and costs in the amount of $146.00. This order is now being appealed as Case No. 98-378 AP. Final Judgment approving these figures for attorney’s fees and costs was entered on October 16, 1998, and is now being appealed as Case No. 98-423AP.
The Florida Supreme Court in Stockman v. Downs, 573 So. 2d 835, 837 (Fla. 1991), held that “a claim for attorney’s fees, whether based on statute or contract, must be pled.” The fundamental concern of the Court in Stockman, was one of notice. The Court stated that “[m]odern pleading requirements serve to notify the opposing party of the claims alleged and prevent unfair surprise.” Id. Paragraph 10 of the Complaint put Fortune on notice that Urquijo had to retain counsel to bring suit to compel payment for PIP benefits and that Urquijo was claiming entitlement to recover a reasonable attorney’s fee for the prosecution of the action. Fortune was further put on notice by the “WHEREFORE CLAUSE” of the complaint. Additionally, Paragraph 9 of the complaint referred to the Florida Motor Vehicle No-Fault Law which is inclusive of §§ 627.730-627.7405, Fla. Stat. (1998). Accordingly, § 627.736, Fla. Stat. (1998), the PIP Statute is included in the Act.
Section 627.736(8), Fla. Stat. (1998) provides for attorney’s fees to be granted “[w]ith respect to any dispute under the provisions of §§ 627.730-627.7405 between the insured and the insurer” and states that the provisions of § 627.428, Fla. Stat. (1998) shall apply. Section 627.428, Fla. Stat. (1998) provides that,
[u]pon 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.
The complaint read as a whole was clearly sufficient in placing Fortune, a sophisticated insurance provider, on notice that Urquijo was seeking attorney’s fees. Notice that Urquijo was seeking attorney’s fees was supplied by reference to the Florida Automobile Reform Act in paragraph 9, by paragraph 10, and by the “WHEREFORE CLAUSE” of the complaint.2 While imperfectly pled,3 the Court finds that the complaint provided Fortune with sufficient notice that Urquijo was bringing this action under the Act which incorporates the PIP Statute and that Urquijo would be seeking reimbursement of reasonable attorney’s fees. Accordingly, the Court AFFIRMS the decision of the trial court. The Court also GRANTS the Appellee’s Motion for Attorney’s Fees on appeal and REMANDS to the trial court for a determination of these fees and costs. See §627.428, Fla. Stat. (1998); see also Wollard v. Lloyds and Companies, 439 So. 2d 217 (Fla. 1983); Fortune Insurance Company v. Brito, 522 So. 2d 1028 (Fla. 3rd DCA 1989), Amador v. Latin American Insurance Company, 552 So. 2d 1132 (Fla. 3rd DCA 1989).
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1The Florida Automobile Reparations Reform Act was renamed as the Florida Motor Vehicle No-Fault Law, §§ 627.730-627.7405, Fla. Stat. (1998).
2The Court notes the case of U.S. Security Insurance Co. v. Marquez, 5 F.L.W. Supp. 143 (11th Jud. Cir., Nov. 7, 1997) which came to an opposite result. In Marquez the court found that the plaintiff’s request for attorney’s fees was too general to put the defendant on notice. Further, unlike the case at bar, the plaintiff in Marquez never requested reimbursement of the fees except for the demand in the “WHEREFORE CLAUSE.”
3The Court recognizes that the better practice would be to include the specific statutory provision under which the party is claiming attorney’s fees.
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