9 Fla. L. Weekly Supp. 133b
Insurance — Attorney’s fees — Justiciable issues — Insurer’s motion for attorney’s fees denied where insured’s settlement with insurer did not deprive plaintiff medical provider, to whom insured had executed an assignment, of a cause of action against insurer
FISHMAN AND STASHAK, M.D.’S, P.A. d/b/a GOLD COAST ORTHOPEDICS also d/b/a GOLD COAST ORTHOPEDICS AND REHABILITATION (Rowland Jadusingh), Plaintiff, v. PROGRESSIVE BAYSIDE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 01-10985 COCE 54. December 2, 2001. Zebedee W. Wright, Judge. Counsel: Robert G. Nichols, Watson & Lentner, Fort Lauderdale, for Plaintiff. James Sparkman, Sparkman & Associates, for Defendant.
ORDER DENYING DEFENDANT’S 57.105 MOTIONFOR ATTORNEY’S FEES
THIS CAUSE coming on to be heard upon the Defendant’s Motion for Attorney’s Fees under F.S. 57.105, and the Court having heard argument of counsel for the parties, and being otherwise fully apprised in the premises, it is, therefore,
ORDERED AND ADJUDGED that Defendant’s Motion for Attorney’s Fees under F.S. 57.105 is hereby Denied. Because the insured, by executing an assignment to Plaintiff, had contracted away his right to collect benefits owed to Plaintiff, he was powerless to bind Plaintiff through the settlement of his first-party lawsuit against Defendant. In addition, the insured’s “settlement” did not include interest payments owed to Plaintiff. Therefore, the settlement of the first-party lawsuit did not deprive the plaintiff of a cause of action against Defendant. State Farm Ins. Co. vs. Ray, 556 So. 2d 811 (Fla. 5th DCA, 1990). Executive Centers of America vs. Durability Seating, 402 So. 2d 24 (Fla. 3rd DCA, 1981).
* * *
