9 Fla. L. Weekly Supp. 806a
Attorney’s fees — Insurance — Prevailing party — Plaintiff is not entitled to attorney’s fees as prevailing party in case dismissed for failure to prosecute since dismissal is not a dismissal on merits, and plaintiff is not a prevailing party — Plaintiff is entitled to attorney’s fees and costs for recovery in follow-up case
RUDOLPH VALENTINO, JR., as next friend and parent of Melissa Valentino, a minor, Plaintiff, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, a corporation, Defendant. County Court, 20th Judicial Circuit in and for Lee County, Civil Action. Case No. 01-2345 CC EJV. July 17, 2002. Edward J. Volz, Jr., Judge. Counsel: Richard L. Purtz, Goldstein, Buckley, Cechman, Rice & Purtz, P.A., Fort Myers. Robert P. Kelly, Hyde, Gomer & Derrick, Tampa.
ORDER AWARDING ATTORNEY’S FEES AND COSTS
THE PLAINTIFF’S Motion to Tax Attorney’s Fees, Legal Assistants’ Fees, and Costs, dated April 24, 2002, having come on to be heard by this Court on July 8, 2002, both sides being present and given the opportunity to give argument, the Court finds as follows.
The instant case before this Court is a follow-up to case number 98-1450 CC between the parties on the same issue. That case was dismissed for failure to prosecute, pursuant to Fla.R.Civ.P. 1.420(e), on May 7, 2001, with an Order being filed on July 3, 2001. The plaintiff is seeking attorney’s fees not only for this case, but for the hours expended in case number 98-1450 CC. With that case being dismissed for failure to prosecute, such dismissal is not a dismissal on the merits; yet, again, the plaintiff is not the prevailing party in such a suit.
Pursuant to F.S. §627.428, the plaintiff would be entitled to attorney’s fees if they were the prevailing party. Since there was no prevailing party, this Court will not and cannot award fees for any work done under 98-1450 CC. O.A.G. Corp. v. Britamco Underwriters, Inc., 707 So.2d 785 (3d DCA 1998).
As to a review of the file in the case of 01-2345 CC, the Court finds that the plaintiff is entitled to attorney’s fees for recovery in this matter. The Court feels that the attorneys are justified in receiving 5.28 hours at what the Court finds as a reasonable rate of $200.00 per hour, or One Thousand Fifty-Six Dollars ($1,056.00). Likewise, the plaintiff is entitled to legal assistants’ hours, and in this case the Court determines to be 2.6 hours at a reasonable rate of $75.00 per hour, for a total of One Hundred Ninety-Five Dollars ($195.00). The Court grants a total award for fees of One Thousand Two Hundred Fifty-One Dollars ($1,251.00).
The Court is also satisfied that the plaintiff is entitled to costs of this action, and in a review of the court file, the Court is satisfied that the plaintiff is entitled to a reimbursement of costs expended in the amount of One Hundred Three Dollars Fifty Cents ($103.50).
* * *
