6 Fla. L. Weekly Supp. 265b
Insurance — Personal injury protection — Competing claims by insurer for lost wages and by health care provider for amount of lien — Interpleader — Attorney’s fees — Health care provider which had lien for medical services and counterclaimed for entire amount of its lien in interpleader action filed by insurer, on ground that interpleader amounted to a “settlement” which interfered with its lien, lost its right to appeal circuit judge’s dismissal of its counterclaim with prejudice because notice of appeal was filed nine months past deadline, and because provider appealed circuit court order to the circuit court — Where the only thing at stake after dismissal of counterclaim was the $10,000 fund which insurer was liable for under its policy with insured, and both provider and insured claimed entitlement to all or part of that fund, the same thing, debt or stake was claimed by both defendants — Insurer stood in position of indifference because, at time of interpleader, insurer had not incurred any liability other than that which was capped at the amount of its policy — No error in trial court’s finding that insurer was entitled to recover attorney’s fees from interpleaded fund where record supported finding that insurer had total disinterest in stake and did nothing to cause conflicting claims
LEE MEMORIAL HOSPITAL, Appellant, vs. ALLSTATE INSURANCE COMPANY, Appellee. 20th Judicial Circuit in and for Lee County. Case No. 95-6828 AP. Lower Case No. 94-3974 CC. Opinion issued November 30, 1998. Appeal from the County Court for Lee County; John W. Dommerich, Judge. Counsel: Robert C. McCurdy, Fort Myers, for Appellant. Anthony J. Parrino, St. Petersburg, for Appellee.
(PER CURIAM.) What might otherwise have been a simple interpleader action in County Court has become, through a series of procedural parapraxes, a legal quagmire best described in an understated way as complex. Our analysis begins with a brief recitation of the salient facts.
The genesis of this case was an automobile accident involving Cullen J. Horne (“Horne”), who was subsequently treated at Lee Memorial Hospital (“LMH”), the Appellant in this case. Horne was covered for $10,000 through a personal injury protection (“PIP”) insurance policy provided by Allstate Insurance Company (“Allstate”), the Appellee.
Horne claimed that he should receive a portion of the insurance fund for wages lost due to the accident. LMH claimed it should receive the fund because of a lien for medical services against Horne in the amount of $15,428.08. Additionally, LMH claimed that if the insurance proceeds were paid to Horne, Allstate would then be liable to LMH for the entire amount of the lien pursuant to Chapter 78-552, Laws of Florida.
Allstate was therefore subject to suit no matter what course of action it took. Forced to navigate the legal seas between Scylla and Charybdis, Allstate chose instead to remain in port, interplead the funds and let the trial court determine how the $10,000 fund should be distributed.
The Defendants in the action were Horne and LMH. Both Defendants counterclaimed. Horne claimed that the policy should be distributed to him for his lost wages. LMH counterclaimed for the entire amount of the lien ($15,428.08) it held against Horne. In effect, LMH claimed that the interpleaded action was essentially a “settlement” which interfered with its lien, and pursuant to Chapter 78-552, the hospital could seek the entire amount of its claim against Allstate.
Allstate’s original complaint for interpleader stated that it was to be filed in county court. However, for reasons unknown to this Court, it was given a circuit court case number and assigned to Circuit Judge James R. Thompson.
Thereafter, LMH’s counterclaim for the entire amount of the lien was filed, bringing the case into the jurisdiction of the circuit court. However, no motion to transfer was filed pursuant to Fla. R. Civ. P. 1.170(j), nor was any order rendered transferring the case.
Judge Thompson eventually dismissed LMH’s counterclaim. The case, now merely a $10,000 interpleader action, was then erroneously transferred to the county court. This transfer was initiated by the Clerk of the Court and not pursuant to an order rendered by Judge Thompson. Under normal circumstances, the circuit court should have heard the entire case. See e.g., National Juice Corporation v. Gillian, 63 So. 2d 914 (Fla. 1953); Watt v. Bill Branch Chevrolet Inc., 292 So. 2d 56 (Fla. 2d DCA 1974).
However, as mentioned above, the case was transferred by the Clerk and the trial court ruled on the interpleader action, distributing the fund to LMH less attorney’s fees. Counsel for LMH then appealed both Judge Dommerich’s ruling from the county court and Judge Thompson’s ruling from the circuit court to this very court.
Three issues are presented for review. The first is whether LMH’s appeal of Judge Thompson’s order dismissing its counterclaim is appropriate; the second is whether Allstate satisfied the elements for an interpleader action; and the third is whether it was appropriate for attorney’s fees to be paid from the fund to Allstate.
With regard to the first issue, we note that Judge Thompson dismissed LMH’s counterclaim with prejudice. Dismissals with prejudice are final orders which must be appealed within thirty days. Fla. R. App. P. 9.030 and 9.110(b). Moreover, pursuant to Rule 9.030(1)(b), the proper court for LMH to appeal the dismissal of its counterclaim would have been the Second District Court of Appeal, not the circuit court.
Because LMH filed its notice of appeal of Judge Thompson’s dismissal of its counterclaim nine months past the deadline, and because LMH appealed a circuit court order to the circuit court, LMH lost its right to appeal this issue.
We turn now to the second issue. In order to sustain an action for interpleader, the party bringing suit must demonstrate the existence of four elements: 1) claims must be dependent or have a common origin; 2) the same thing, debt or stake must be claimed by defendants; 3) the plaintiff must have no interest in the subject matter of the suit; and 4) the plaintiff must be in a position of indifference, having incurred no independent liability to either of the claimants. See, Sea Management Service, Ltd. v. Club Sea, Inc., 512 So. 2d 1025 (Fla. 3d DCA 1987).
LMH challenges the existence of the second and fourth elements on appeal. First, LMH alleges that the same thing is not claimed by the Defendants because LMH claimed $15,428.08 and Horne claimed $10,000. This allegation, however, hinges on the existence of the counterclaim. In that counterclaim, LMH argued that an action of interpleader was tantamount to a settlement which was violative of Chapter 78-552. A violation of that Special Act would have allowed LMH to bring the entire amount of its claim against Allstate. However, because the circuit court dismissed the counterclaim, the only thing at stake in the action in the county court was the $10,000 fund which Allstate was liable for under its policy with Horne. Thus, contrary to LMH’s argument, the same thing, debt or stake was claimed by the Defendants.
Second, LMH alleges that Allstate is not in a position of indifference because Allstate is potentially liable to LMH for the total amount of the lien and thus there was an incentive for avoidance of that liability. The requirement of indifference is discussed in Hernandez v. Travelers Insurance Company, 356 So. 2d 1342 (Fla. 3d DCA 1978). In Hernandez the court was dealing with an insurance company which sought to absolve itself of potential liability to several parties arising from the negligence of its insured.
In the case at bar, the Defendants were claiming the proceeds of a single fund, and Allstate was not seeking to cut off legitimate claims as the Appellee did in Hernandez. This case is particularly instructive because the Third District stated (albeit in dicta) that a situation involving a single fund constitutes indifference. Id. at 1344.
LMH responds by arguing that if Allstate had determined on its own to disburse the funds to Horne, then Allstate would have been liable for the full amount of the lien under Chapter 78-552. However, at the time Allstate filed the interpleader action, its liability was capped at the amount of its policy. Allstate had not incurred any independent liability, and because of Judge Thompson’s dismissal of LMH’s counterclaim, the argument that Allstate would possibly be liable for $15,428.08 is without merit. The trial court properly determined the propriety of the interpleader action.
Turning now to the third and final issue, generally speaking a party who is entitled to sue in interpleader is permitted to recover attorney’s fees from the interpleaded fund. See, e.g., Bache Halsey Stuart Shields Inc. v. Witous, 411 So. 2d 1324 (Fla. 2d DCA 1982). However, the party bringing the interpleader action must prove a total disinterest in the stake which is held and must also show that the party “did nothing to cause the conflicting claims or give rise to the double vexation.” Ellison v. Riddle, 166 So. 2d 840, 841 (Fla. 2d DCA 1964). Additionally, this inquiry into the interpleading party’s motives is primarily factual and thus the trial judge’s determination is given deference unless it is “clearly erroneous.” See, Helman v. Seaboard Coast Line Railroad Company, 349 So. 2d 1187 (Fla. 1977).
In the case sub judice, there exists substantial evidence on the record to support the trial court’s ruling. In analyzing the two factors set forth in Ellison, supra, it appears that Allstate was entitled to attorney’s fees. First, the record shows that Allstate merely wanted to distribute the proceeds of its policy without fear of exposing itself to further liability. The record also shows that, as long as Allstate was spared any further liability, it was indifferent as to where the assets from the interpleaded fund were distributed.
Second, the record also shows that Allstate did nothing to create the conflicting claims. Allstate’s only affirmative act was to enter into a contract for a policy of insurance with Horne. Allstate had no involvement in the case after that point, other than to pay the $10,000 required by the policy to the party entitled to it. This is what the interpleader was designed to accomplish. Thus, Allstate satisfies the general requirements which allow plaintiffs in an interpleaded action to receive attorney’s fees. Notwithstanding that fact, LMH argues that this is not the typical interpleader case because Chapter 78-552 gives the hospital’s lien priority over attorney’s fees. In support of this argument, LMH cites Hospital Board of Directors of Lee County v. McCray, 456 So. 2d 936 (Fla. 2d DCA 1984). In McCray the court stated that “[a] hospital’s statutory lien may not be impaired or diminished by the amount of attorney’s fees which may be due to the patient’s counsel.” Id. at 939.
This case is distinguishable from McCray in several respects. First, the McCray court did not address the issue of interpleader. It merely stated that the patient’s counsel may not receive priority over the hospital’s lien. Here, the patient’s counsel is not the party seeking attorney’s fees, but rather it is the party who initiated the interpleader who seeks fees.
Second, the rationale of Chapter 78-552 as stated in McCray is to assure LMH that it will receive compensation and thus will not be hesitant to treat indigents. Id. at 939. In the present case, had LMH been concerned with merely getting optimal compensation from the $10,000 insurance fund, it would have chosen not to contest the interpleader action, thus reducing the attorney’s fees and costs eventually awarded by the trial court to Allstate.
Third, there exists a strong public policy in favor of creating an incentive for parties to accept the policy limits from an insurance company and then litigate the issue between themselves with no fear that the prevailing party will have the fund reduced for any reason.
The judgment is AFFIRMED. (NELSON, PELLECCHIA, and MONACO, JJ., concur.)
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