9 Fla. L. Weekly Supp. 85a
Insurance — Personal injury protection — Appellate attorney’s fees — Where appellate court concluded that directed verdict in favor of insurer was inappropriate, remanded case for new trial, and granted insured’s motion for appellate fees, order granting fees is conditioned upon insured ultimately prevailing with a recovery on the policy on retrial
MARIA LAMORA, Appellant, v. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 00-031 AP. L.C. Case No. 98-10613 CC 05. Opinion filed December 11, 2001. An Appeal from County Court, Miami-Dade County, Florida, Judge A. Leo Adderly. Counsel: Michael I. Libman, for Appellant. Hinda Klein, Appellee.
(Before D. BRUCE LEVY, JENNIFER D. BAILEY, MICHAEL B. CHAVIES, JJ.)
(BAILEY, J.) (Per Curiam.) Appellee, United Automobile Insurance Company, is moving for rehearing on the attorney’s fees award ordered by the Appellate Panel on May 16, 2001. The Appellate Order states in pertinent part as follows: “The appellant’s motion for attorneys fees is granted and remanded to the trial court to fix the amount.” Furthermore, the Appellate Panel concluded that the directed verdict in favor of Appellee ordered by the trial court was inappropriate and remanded the case for a new trial. The Appellate Panel specifically found that the trial court erred in concluding that the Appellant/Plaintiff, Ms. Lamora, unreasonably failed to appear for her independent medical examination (IME) twice. Specifically, the issue is whether the Appellate Order awarding attorney’s fees to the Appellant/Plaintiff must be conditioned upon her actually prevailing and obtaining a judgment in her favor at the time of retrial.
Similarly, in Hart v. Bankers Fire & Cas. Ins. Co., 320 So. 2d 485 (Fla. 4th DCA 1975), the Fourth District Court of Appeal reversed a final judgment entered pursuant to a motion for a directed verdict in favor of the insurer and remanded the cause for a new trial for the insured. Upon a Motion for Rehearing, the Hart Court concluded that the award of attorney’s fees to the insured, for services rendered incident to the appeal, must be conditioned upon the insured prevailing below on the issue of coverage. Id. at 486. The Court further explained that in the event the appellant prevailed below, the amount of the award shall be then assessed by the trial court upon due notice and subject to review by the appellate court. The Court based its decision upon its reading of the statutory provision that provides for the award of attorney’s fees in suits between an insurer and an insured, Fla. Stat. § 627.428. The Court concluded that Fla. Stat. §627.428 presupposes the entry of a judgment against the insurer in which recovery is had by the insured. Furthermore, The Third District Court of Appeal in Tench v. American Reliance Ins. Co., 671 So. 2d 801, 802 (Fla. 3d DCA 1996) citing, Allstate Ins. Co. v. De La Fe, 647 So. 2d 965 (Fla. 3d DCA 1994) has recognized that in cases such as the one sub judice, the order granting appellate attorney’s fees should be conditioned upon the insured ultimately prevailing with a recovery on the policy.
The petition for rehearing is granted, the Appellate Panel’s Order is vacated, and a modified order is hereby issued.
MOTION FOR REHEARING GRANTED AS TO THE ISSUE OF ATTORNEY’S FEES. (BRUCE LEVY and MICHAEL B. CHAVIES, JJ., concur).
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