6 Fla. L. Weekly Supp. 790b
Insurance — Attorney’s fees — Prevailing party — Plaintiff entitled to attorney’s fees as prevailing party pursuant to attorney’s fees provision set forth in section 627.736(4), Florida Statutes, where defendant paid claims prior to arbitration hearing but after plaintiff filed lawsuit and demand for arbitration — Defendant cannot avoid liability for attorney’s fees by paying claims after suit is filed
SENSORY NEURODIAGNOSTIC, INC., as assignee of Joanne Baroody, Plaintiff, v. PINNACLE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit, in and for Hillsborough County, Civil Division. Case No. 97-17636-SC, Division J. August 20, 1999. Marva L. Crenshaw, Judge.
ORDER DENYING DEFENDANT’S MOTION FOR REHEARING AND GRANTING PLAINTIFF’S MOTION FOR ATTORNEY’S FEES
THIS CAUSE came before the court June 30, 1999, on Defendant’s Motion for Rehearing of Plaintiff’s Motion for Attorney’s Fees. The court heard the arguments of counsel, reviewed the documents and memoranda submitted by the parties, and now makes the following findings.
This case is a third party beneficiary case brought pursuant to section 627.736, Florida Statutes (1997). Because section 627.736(5), Florida Statutes (1997), and subsequent case law require the parties to go to arbitration, this court abated the matter while the parties went to arbitration. The parties settled the matter after Plaintiff’s demand for arbitration but before the hearing took place, the defendant having paid a sum amounting to about half the demand. The parties now dispute the award of attorney’s fees to Plaintiff. Plaintiff maintains it is the prevailing party because Defendant paid its claim after Plaintiff filed a lawsuit and a demand for arbitration, in effect confessing judgment; Defendant maintains that because an arbitration hearing did not take place, Plaintiff cannot be the prevailing party as set forth in section 627.736(5), Florida Statutes (1997).
Section 627.736(5), Florida Statutes (1997), has been extensively litigated in the Florida courts, and the second district court has found the requirement to arbitrate to be constitutional. Omni Insurance Co. v. Special Care Clinic, Inc., 708 So.2d 314 (Fla. 2d DCA 1998). However Omni did not address the constitutionality of the attorney’s fees provision set forth in 627.736(5), Florida Statutes (1997), which sets forth a “prevailing party” standard. A recent circuit court appellate decision in the 13th Judicial Circuit held that the statute is unconstitutional on the issue of attorney’s fees in that it arbitrarily discriminates against medical providers by eliminating the benefits of section 627.428(1), Florida Statutes (1997), that first party beneficiaries enjoy. MTM Diagnostics, Inc. v. Progressive Express Insurance Co., No. 99-333 (Fla. 13th Cir. Ct. June 17, 1999). In reaching that conclusion, the circuit court followed Delta Casualty Co. v. Pinnacle Medical, Inc., 721 So.2d 321 (Fla. 5th DCA 1998), because Omni did not address the issue. A decision of the circuit court sitting in its appellate capacity is binding upon all county courts within that circuit. Fieselman v. State, 566 So.2d 768 (Fla. 1990); State v. Lopez, 633 So.2d 1150 (Fla. 5th DCA 1994).
Inasmuch as the provisions of section 627.428(1), Florida Statutes (1997) and interpretive case law apply to the award of attorneys fees, Florida law supports the award of attorney’s fees under the facts presented in this case. See Wollard v. Lloyd’s, 439 So.2d 217 (Fla. 1983); Gibson v. Walker, 380 So.2d 531 (Fla. 5th DCA 1980). The policy behind section 627.428, Florida Statutes, is to prevent a plaintiff from having to resort to litigation for the payment of valid claims. Gibson v. Walker. Although Defendant emphasizes the fact that it paid claims prior to arbitration it did so after suit and demand for arbitration were filed. Defendant cannot avoid liability for attorney’s fees by paying claims after suit is filed. Gibson v. Walker.
Although Gibson involves a situation in which the insurer tendered policy limits, the amount of a settlement has not been a factor in deciding entitlement to attorney’s fees in judicial decisions on this issue. In fact, the courts have been silent on the matter. Wollard; Avila v. Latin American Property and Casualty Company, 548 So. 2d 894 (Fla. 3d DCA 1989), Losicco v. Aetna Casualty and Surety Co., 588 So.2d 681 (Fla. 3d DCA 1991), and Amador v, Latin American Property & Casualty Insurance Company, 552 So.2d 1132 (Fla. 3d DCA 1989). Further, section 627.428, Florida Statutes (1997), merely requires the entry of a judgment or decree; it does not impose an additional requirement that the judgment be for the exact amount claimed by the plaintiff.
In light of the foregoing, it is hereby
ORDERED AND ADJUDGED
Defendant’s Motion for Rehearing is DENIED. Plaintiff’s Motion for Attorney’s Fees is GRANTED, and a hearing will be held to determine the amount due.
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