9 Fla. L. Weekly Supp. 555b
Attorney’s fees — Insurance — Personal injury protection — Trial court has inherent authority to rescind order granting attorney’s fees but not awarding amount, which is interlocutory order, prior to entry of final judgment — Where insurer paid insured entire amount of PIP benefits owed prior to date insured filed complaint, insured is not entitled to attorney’s fees
OPEN MRI OF PINELLAS, INC., Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County, Small Claims Division. Case No. 00-001360-SC-SPC. May 2, 2001. Walter Fullerton, Judge. Counsel: William K. Saron. Joseph F. Diaco, Jr., Adams, Blackwell & Diaco, P.A., Tampa.
ORDER ON DEFENDANT’S MOTION FOR REHEARINGOR IN THE ALTERNATIVE MOTION TOALTER OR AMEND JUDGMENT
This cause came to be heard on April 24, 2001, on Defendant’s Motion for Rehearing or in the Alternative, Motion to Alter or Amend Judgment, and after reviewing the Motion and hearing argument from the parties, and being further advised, the Court finds:
1. A Motion for Rehearing pursuant to Florida Rule of Civil Procedure 1.530(g), must be served within 10 days after a verdict is returned or a judgment is filed; and a Motion for Relief from Order filed pursuant to Rule 1.540(b) is only applicable to final judgments or orders, see Tieche v. Florida Physicians Insurance Reciprocal, 431 So. 2d 287 (Fla. 5th DCA 1983).
2. Nevertheless, this Court has inherent authority to rescind its interlocutory orders prior to entry of final judgment. See North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla. 1962); Hunters v. Dennies Contracting Co., 693 So.2d 613 (Fla. 2d DCA 1997).
3. An order granting entitlement to attorney’s fees, but not awarding an amount, is interlocutory and nonfinal. See Stoker v. Stoker, 742 So. 2d 357 (Fla. 2d DCA 1999).
4. The Court’s previous order determining Plaintiff’s entitlement to attorney’s fees was based upon its ruling that deemed Plaintiff’s Complaint filed as of the date it was mailed.
5. In light of the authorities presented by Defendant in its Motion, however, the Court has reconsidered that ruling and accordingly,
IT IS ORDERED AND ADJUDGED THAT
Upon its own motion, the Court rescinds its prior Order determining that Plaintiff is entitled to an award of attorney’s fees.
IT IS FURTHER ORDERED AND ADJUDGED THAT
Because Defendant paid Plaintiff the full amount of PIP benefits owed under Defendant’s policy of insurance prior to the date Plaintiff’s Complaint was filed in the Clerk’s office, see Fla. R. Civ. Pro. 1.050, 1.080(e); Vaquero v. Security National Ins. Co., 734 So. 2d 428 (Fla. 3d DCA 1999); Outboard Marine Domestic International Sales Corp. v. Florida Stevedoring Corp., 483 So. 2d 823 (Fla. 3d DCA 1986); Estate of James v. Martin Memorial Hospital, 422 So. 2d 1043 (Fla. 4th DCA 1982), Plaintiff is not entitled to an award of attorney’s fees provided by section 627.428, Florida Statutes (1999). See Florida Life Ins. Co. v. Fickes, 613 So. 2d 501 (Fla. 5th DCA 1993). Accordingly, Plaintiff’s Motion for Entitlement to Attorney’s Fees and Costs is DENIED, and this cause is DISMISSED WITH PREJUDICE.
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