6 Fla. L. Weekly Supp. 181b
Insurance — Personal injury protection — Attorney’s fees — Where medical provider whose bill was partially unpaid unilaterally elected to write off the balance after insured filed suit against insurer and insurer made time-consuming discovery requests involving provider and members of his staff, the benefit insured obtained was, at best, a collateral consequence of litigation against insurer and independent of any act constituting an admission or confession of judgment which would entitle insured to an award of attorney’s fees — Insured’s motion for entitlement to attorney’s fees denied as to claims for medical services and/or treatment for which charges have been written off — Jurisdiction reserved to award reasonable attorney’s fees and costs pending settlement or adjudication in favor of insured as to amounts paid for medical services which insured alleged to have been reasonable and necessary
Additional rulings in this case at 25 Fla. L. Weekly D2730a and 28 Fla. L. Weekly S57a
MAURICE DERIUS, Plaintiff, vs. ALLSTATE INSURANCE COMPANY, Defendant. County Court in and for Palm Beach County, Civil Division. Case No. MC-96-05699-RJ. November 10, 1998. Stephen M. Cohen, Judge.
ORDER ON PLAINTIFF’S MOTION FOR ENTITLEMENT TO ATTORNEY’S FEES
THIS MATTER having come before the Court on Plaintiff’s Motion For Entitlement To Attorney’s Fees, and the Court having heard argument of counsel, and being otherwise fully advised in the premises, the Court finds:
Applicable Facts
The facts herein are undisputed and present what appears to be a legal issue of first impression in Florida.
Plaintiff filed the instant action seeking recovery of Personal Injury Protection (“PIP”) benefits from the Defendant for amounts claimed for reasonable and necessary medical treatment resulting from an automobile accident. Subsequent to the instant litigation being commenced and the Defendant becoming actively engaged in the defense of Plaintiff’s claims, the Defendant filed a Motion For Partial Summary Judgment as to services rendered by Alan L. Scott, D.C., on the basis that the Doctor had written off any existing balance on Plaintiff’s account, both to amounts allegedly due by the Defendant and any resulting balance due by the Plaintiff himself.
The Plaintiff seeks an award of reasonable attorney’s fees and costs, pursuant to §627.428, Florida Statutes (1997). In support of said claim, Plaintiff’s counsel argues that the Defendant’s persistent and time consuming discovery involving Dr. Scott and members of his staff in this and a preceding companion case (involving Mr. Derius’ wife) caused Dr. Scott to forgive any account balance. Plaintiff further argues that this only resulted as a direct result of Plaintiff having initiated the instant action and that the result obtained as to said bills was of benefit to him and, therefore, the Defendant is liable for reasonable attorney’s fees and costs. Lastly, Plaintiff made a $783.83 payment to Dr. Scott prior to an account adjustment by Dr. Scott.
The Defendant contends that §627.428, Florida Statutes (1997), and cases relying thereon, requires that a judgment be rendered against the insurer as a condition precedent to the recovery of attorney fees and costs by the insured. See, Dunmore v. Interstate Fire Ins. Co., 301 So.2d 502 (Fla. 1st DCA 1974), cited by the Defendant.
The deposition transcript of Dr. Scott, introduced in support of Defendant’s Motion For Summary Judgment, establishes that the Plaintiff’s account balance was written off (both as to amounts allegedly due from the Defendant as well as any resulting balance due from the Plaintiff) by Dr. Scott independent of any request, negotiation or agreement with Defendant or Defendant’s counsel. Dr. Scott unilaterally elected to “write-off” the subject account after being served with a subpoena from Defendant’s counsel for a deposition in the instant action coupled with previous and significant investment of time by office staff members in providing deposition testimony to defense counsel and meetings with defense counsel in this case.
Lastly, the write-off of Plaintiff’s account balance by Dr. Scott was neither at the request of the Plaintiff nor with the Plaintiff’s agreement or acquiescence.
Applicable Law
§627.428(1), Florida Statutes (1997), must be strictly construed, as an award of attorney’s fees is in derogation of common law. Roberts v. Carter, 350 So.2d 78 (Fla. 1977). However,
[T]he statutory obligation for attorney’s fees cannot be avoided simply by paying the policy proceeds after suit is filed but before a judgment is actually entered because to so construe the statute would do violence to its purpose, which is to discourage litigation and encourage prompt disposition of valid insurance claims without litigation. Wollard v. Lloyd’s and Companies of Lloyd’s, 439 So.2d 217 (Fla. 1983), citing Gibson v. Walker, 380 So.2d 531 (Fla. 4th DCA 1980).
In Insurance Co. Of North America v. Lexow, 602 So.2d 528 (Fla. 1992), the Plaintiff/Insurer brought a good faith action for judicial determination of entitlement for certain insurance proceeds, it was held that the fact of the insurer’s good faith action was irrelevant. The Supreme Court held that,“[i]f the dispute is within the scope of section 627.428 and the insurer loses, the insurer is always obligated for attorney’s fees.”
In the instant case, the Defendant/Insurer did not pay the claim (even after initiation of the litigation) nor was it ever found to be obligated to pay any amounts. Further, there is no evidence that the decision by Dr. Scott to write-off Plaintiff’s account balance was at the request of or directly due to Defendant’s actions. Nothing done by the Defendant herein may be construed as an admission or confession of judgement, which would compel an entitlement to an award of attorney’s fees to the Plaintiff.
Undoubtedly, the Plaintiff realized a benefit as any and all amounts that he may have been responsible for have been forgiven. However, at best, said benefit was a collateral consequence of the litigation and independent of any act of constituting an admission by the defendant as a matter of law.
Based on the foregoing, IT IS
ORDERED AND ADJUDGED that Plaintiff’s Motion For Entitlement To Attorney’s Fees is denied as to any claims for medical services and/or treatment provided by Dr. Scott and the charges for which have been written off. IT IS FURTHER
ORDERED AND ADJUDGED that the Court reserves jurisdiction to award reasonable attorney’s fees and costs pending settlement or adjudication in favor of the Plaintiff as to amounts paid for services to Dr. Scott which the Plaintiff alleges to have been reasonable and necessary.
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