7 Fla. L. Weekly Supp. 710a
NOT FINAL VERSION OF OPINION
Subsequent Changes at 7 Fla. L. Weekly Supp. 777a
Attorney’s fees — Insured entitled to recover attorney’s fees incurred in successfully defending certiorari petition filed by insurance carrier — Appellate court unable to review underlying factual issues that were argued in support of or in opposition to insured’s motion for protective order against taking of attorney’s deposition given lack of transcript of proceedings below or proper substitute
FORTUNE INSURANCE COMPANY, Petitioner, v. AMY HALLORAN, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Dade County. Case No. 00-038 AP. Miami-Dade County Court Case No. 99-8914 SP 23 (3). August 25, 2000. An Appeal from the Miami-Dade County Court. Counsel: Diane H. Tutt, P.A., Appellate Counsel for Petitioner. Julie B. Glassman, Trial Counsel for Petitioner. Scott R. Clew, Appellate Counsel for Respondent.
(Before ALEX E. FERRER, RONALD C. DRESNICK, GILL S. FREEMAN, JJ.)
(FREEMAN, J.) (Per Curiam.) We deny the Petition for Writ of Certiorari. There is no record of the proceedings before the trial court. The lack of transcript or a proper substitute will not allow an appellate review of any underlying factual issues that were argued in support of or in opposition to the Motion for Protective Order. Felsen v. Felsen, 629 So. 2d 1083 (Fla. 1st DCA 1994); E. H. Development, Inc., v. Kelly Tractor, Co., 501 So. 2d 1301 (Fla. 4th DCA 1987). This panel cannot second guess nor determine whether the trial judge abused her discretion with the instant record. Consequently, the Petition is denied and thus Petitioner’s additional Motion for Attorney’s Fees pursuant to § 57.105(1), Fla. Stat. for this appeal is also denied.
Respondent’s Motion for Attorney’s Fees for defending the Petition for Certiorari is hereby granted. While § 627.428(3), Fla. Stat. does not provide for fees which are “incur[red] solely for the attorney’s benefit,” State Farm Fire & Casualty Co., v. Palma, 629 So. 2d 830 (Fla. 1993), this Petition was not instigated by Respondent’s counsel nor was it for counsel’s benefit. Thus Respondent, the insured, is entitled to recover attorney’s fees as the prevailing party in this action for Writ of Certiorari brought by her insurance carrier.
The trial court granted Respondent’s Motion for Protective Order against the taking of the attorney’s deposition. Respondent was thereafter compelled to defend the order of the trial court. Petitioner may not create litigation for an insured and thereafter claim that the insured is not entitled to attorney’s fees.
The purpose of § 627.428(3), Fla. Stat. is to “discourage the contesting of valid claims against insurance companies and to reimburse successful insureds for their attorney’s fees when they are compelled to defend . . .[or] to enforce their insurance contracts.” State Farm Fire & Casualty Co., v. Palma, Supra. Thus Respondent is entitled to attorney’s fees for defending against the Petition for Writ of Certiorari. This matter is remanded to the trial court to assess the amount of attorney’s fees [See 8 Fla. L. Weekly Supp. 456a].
Reversed and remanded. (ALEX FERRER, RONALD DRESNICK, JJ., concur.)
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