19 Fla. L. Weekly Supp. 806a
Online Reference: FLWSUPP 1910MORIInsurance — Personal injury protection — Attorney’s fees — Appellate — Award of partial appellate fees to insured is conditioned on trial court determining that insured is prevailing party in underlying case — Appellate court reverses its conclusion that, due to absence of order awarding fees from appellate record, it did not have jurisdiction to review trial court’s fee award in insured’s favor upon reversing underlying judgment where court has jurisdiction to address issue due to consolidation of cases for appeal
UNITED AUTOMOBILE INSURANCE COMPANY, A Florida Corporation, Appellant, v. FLORIDA INSTITUTE FOR PAIN, INC. a/a/o MIRTHA MORIN, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 08-425 AP and 08-566 AP. L.C. Case No. 06-10372 CC 25. June 14, 2012. On Appeal from the County Court for Miami-Dade County. Jacqueline Schwartz, Judge. Counsel: Lara J. Edelstein, United Automobile Insurance Company, Office of the General Counsel, for Appellant. Chelin V. Sampedro, Chelin V. Sampedro, P.A., for Appellee.[Original Opinion at 17 Fla. L. Weekly Supp. 419a]
(Before TRAWICK, and MURPHY, JJ.)1
(TRAWICK, Judge.) In response to the Appellant’s Motion for Rehearing, the motion for rehearing is hereby granted. That portion of this Court’s opinion filed on February 25, 2010 [17 Fla. L. Weekly Supp. 419a]2 granting partial appellate attorney’s fees to the insured is hereby conditioned on a determination by the trial court that the insured is the prevailing party in the underlying case. Absent such a determination, the insured is not entitled to an award of attorney’s fees.
Additionally, this Court’s reasoning and conclusion that this Court lacks jurisdiction to reverse the “statutory fee award in insured’s favor” is hereby withdrawn. This Court does in fact have jurisdiction to entertain this issue due to the consolidation of related cases 08-425 and 08-566 for this appeal. Having jurisdiction to address this issue, we find that the statutory fees and costs award made by the trial court in favor of the insured must be reversed, as this Court has entered an order reversing underlying judgment.
This case is hereby remanded to the trial court for further proceedings consistent with this opinion.
Reversed and Remanded.
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1The Honorable Roberto M. Pinero (deceased), was originally assigned to this panel.
2This Court’s mandate, issued on March 22, 2010, has been vacated to address the issues raised herein by an order of the Court dated June 7, 2012.
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