18 Fla. L. Weekly Supp. 334a
Online Reference: FLWSUPP 1804MELK
Insurance — Attorney’s fees — Appellate — Section 627.428(1) authorizes award of appellate attorney’s fees to prevailing insured irrespective of non-prevailing insurer’s good faith reliance on since-altered case law in disputing claim
STEVEN MELKA, Appellant, v. MERCURY INSURANCE COMPANY OF FLORIDA, Appellee. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 09-000056AP-88B. UCN: 522009AP000056XXXXCV. February 3, 2011. Honorable Myra S. McNary, Judge. Counsel: James J. Dowling, Palm Harbor, for Appellant. David B. Kampf, Tampa, for Appellee.
ORDER
(WILLIAMS, Judge.) THIS CAUSE is before the Court by Appellant Steven Melka’s Motion for Attorney’s Fees on Appeal, filed on May 6, 2010, and Appellee’s response. Upon consideration, the Court finds that Appellant is the prevailing party on appeal and is entitled to an award of fees.
On November 15, 2010, this Court reversed the County Court’s Order of Final Summary Judgment in favor of Appellee and remanded the matter to the County Court for further proceedings consistent with the Order. Specifically, this Court found that under a supervening Florida Supreme Court decision, the pre-suit notice requirement that Appellant must allow thirty days for Appellee to respond before filing suit, effective January 1, 2008, does not apply retroactively to Appellant’s lawsuit. See Menendez v. Progressive Express Ins. Co., 35 So. 3d 873 (Fla. 2010) [35 Fla. L. Weekly S222b].
Appellant filed a motion for attorney’s fees on appeal under § 627.428(1), Florida Statutes, which provides as follows:
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.
Id. (emphasis supplied); see also Arango v. United Auto. Ins. Co., 901 So. 2d 320 (Fla. 3d DCA 2005) [ 30 Fla. L. Weekly D1129a]. In Arango, the court construed § 627.428 to mandate an award of attorney’s fees when an insured prevails in an action against the insurer, regardless of whether the appellate court decides the merits of the case. Id. at 321-22.
In opposition, Appellee argues that Appellant prevailed on appeal only because a recent Florida Supreme Court decision altered the relevant law and Appellee acted reasonably in disputing Appellant’s underlying claim. In disputing the attorney’s fees, however, Appellee ignores the plain language of the statute and case law. Section 627.428 authorizes an award of attorney’s fees to the prevailing party on appeal irrespective of the non-prevailing party’s good faith. See Abrego, 901 So. 2d at 322.
Accordingly, it is
ORDERED that Appellant’s Motion for Attorney’s Fees on Appeal is GRANTED. This matter is remanded to the County Court for a determination of the amount of reasonable attorney’s fees.
