9 Fla. L. Weekly Supp. 22a
Attorney’s fees — Insurance — Personal injury protection — Error to deny insured attorney’s fees where insured gave insurer sufficient notice that she would be seeking attorney’s fees by requesting fees in wherefore clause of complaint
Angel Quintana, Petitioner, vs. Ocean Harbor Casualty Insurance Company, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 00-364AP. Lower Court Case No. 98-4277 SP 25. Opinion filed November 6, 2001. On Appeal from the County Court of the Eleventh Judicial Circuit, Jose Rodriguez, Judge. Counsel: Mari Sampedro-Iglesia, for Petitioner. Mara Shlackman and Hinda Klein, for Respondent.
(Before Celeste H. Muir, Joseph P. Farina, and Paul Siegel, JJ.)
(Per Curiam.) Appellant, Angel Quintana, had an automobile accident and required medical treatment as a result of injuries suffered in the accident. Appellee, Ocean Harbor Casualty Insurance Company, denied payment for the medical bills that appellant presented. Appellant filed suit and obtained a judgment in his favor. The trial court failed to award attorney’s fees to appellant, and this appeal ensued. Appellee filed a cross appeal contending that the trial court erred in finding insufficient evidence for the defense of accord and satisfaction.
This court concludes that the record supports a finding that the appellee did not establish the defense of accord and satisfaction. As a result, that finding of the trial court is affirmed.
Appellant alleges that he is entitled to attorney’s fees pursuant to §627.428, Fla. Stat., which states:
Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.
§627.428(1) (emphasis added.)
As the legislature used the mandatory language, the court does not have the discretion whether or not to award fees. The trial court has the discretion only as to the amount of the fees.
A party seeking attorney’s fees pursuant to statute or contract must plead entitlement to such fees. Stockman v. Downs, 573 So. 2d 835, 837 (Fla. 1991). Where a party has notice that an opponent claims entitlement to attorney’s fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement, that party waives any objection to the failure to plead a claim for attorney’s fees. Stockman, at 838.
In the instant case, appellant requested fees in the wherefore clause of the complaint, putting the insurer on notice. This was sufficient to put the insurer on notice that he would be seeking fees. The insurer failed to object to an award of fees.
In Fortune Insurance Company v. Cordero, 6 Fla. L. Weekly Supp. 535a (11th Cir. June 4, 1999), the complaint, while imperfectly pled, gave notice to Fortune of a cause of action for attorney’s fees. This was held to be sufficient notice. See also U.S. Security Insurance Company v. Pareja, 6 Fla. L. Weekly Supp. 609a (11th Cir. July 2, 1999).
In a case directly on point, Fortune Insurance Company v. Urquifo, 6Fla. L. Weekly Supp. 604b (11th Cir. July 16, 1999),the insured requested fees in the wherefore clause of the complaint. The court found this was sufficient notice for an award of attorney’s fees.
Accordingly, the decision of the trial court denying attorney’s fees is reversed and the matter is remanded to determine the amount of fees to be awarded. The decision of the trial court on the issue of accord and satisfaction is affirmed.
Appellee’s motion for appellate attorney’s fees is denied.
Affirmed in part, reversed in part, and remanded for a determination of fees.
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