7 Fla. L. Weekly Supp. 98b
Insurance — Attorney’s fees — Section 627.428, which provides for attorney’s fees where insured prevails in action against insurer, does not apply to instant case in which insured’s only cause of action, if any, was on behalf of medical provider to whom benefits had been assigned
ALEXANDER SCHUESSLER, Appellant, vs. ALLSTATE INSURANCE COMPANY, Appellee. 17th Judicial Circuit in and for Broward County. Appeal No. 99-3708 (02). L.T. Case No. 98-3372 (80). November 1, 1999. Leonard L. Stafford, Judge. Counsel: Marc S. Schiller, Steven M. Goldstein, and Jacqueline G. Emanuel.
FINAL ORDER AND OPINION
THIS CAUSE having come before the Court upon review of a final order of the lower court, and the Court having considered the initial and answer briefs, the record, having heard arguments of counsel, and being otherwise fully advised in the premises, hereby finds and decides as follows:
Appellant argues that the lower court erred when it determined that he was not entitled to attorney’s fees pursuant to §627.428, Florida Statutes. The Court disagrees. Section 627.428 provides for attorney’s fees where an insured prevails in an action against his insurer for benefits owed under the policy. In the present case, Appellant assigned his right to sue the insurer for benefits to his medical provider. The record does not establish that this assignment was ever revoked prior to the institution of suit. Accordingly, Appellant’s only cause of action, if any, was on behalf of his medical provider in an arbitration proceeding. See Fla. Stat. §627.736(5). Even assuming it was proper for Appellant to file suit on behalf of the provider in a court of law, attorney’s fees would not be compensable under §627.428 since a medical provider is not the insured. For these same reasons, Appellant is not entitled to attorney’s fees on appeal.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Final Judgment of the lower court be, and same is hereby, AFFIRMED.
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