20 Fla. L. Weekly Supp. 333a
Online Reference: FLWSUPP 2004IRIZInsurance — Personal injury protection — Attorney’s fees — Medical provider who brought action against PIP insurer was not a prevailing party entitled to attorney’s fees under section 627.428 where provider rejected insurer’s presuit offer to settle for over $1200 and final judgment received by provider was for just over $500
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Appellant, vs. COMPLETE REHAB & MEDICAL CENTER OF HOLLYWOOD, a/a/o ANITA IRIZARRY, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 10-27463 (25). L.T. Case No. 08-05410 (54). November 27, 2012.
OPINION
(PHILLIPS, Judge.) THIS CAUSE came before the court, sitting in its appellate capacity, upon Appellant, United Automobile Insurance Company’s, appeal of the trial court’s order granting Appellee, Complete Rehab & Medical Center of Hollywood’s, entitlement to attorney’s fees. The court having considered the briefs filed by the parties, the record on appeal, the applicable law, and being otherwise duly advised in the premises, dispenses with oral argument, and finds and decides as follows:
On April 10, 2008, Complete Rehab & Medical Center of Hollywood (“Complete Rehab”) as assignee of Anita Irizarry (“Irizarry”), filed a Complaint against United Automobile Insurance Company (“United Auto”) for personal injury protection (“PIP”) benefits arising from an automobile accident that occurred on or about June 29, 2007. Prior to the commencement of the law suit, in or around March 2008, United Auto offered Complete Rehab $1215.94 to settle the dispute, which pre-suit offer was rejected by Complete Rehab. On August 24, 2009, Final Judgment was entered in favor of Complete Rehab and against United Auto in the amount of $527.20.1
Thereafter, on September 22, 2009, Complete Rehab, pursuant to section 627.428, Florida Statutes, as the purported prevailing party, moved the trial court for attorney’s fees and costs. On October 2, 2009, the trial court issued an Order Preliminary to Hearing on Motion for Attorney’s Fees and Coats (“the Order Preliminary”), setting forth certain procedures and requirements preliminary to a fee hearing. Specifically, the Order Preliminary required: 1) Complete Rehab to provide an affidavit of attorney’s time detailing the tasks performed; and 2) United Auto to respond to the moving party’s affidavit of attorney’s time and state agreement or objection to such time. The Order Preliminary also provided that the failure of either party to comply with the Order Preliminary would constitute an acceptance of the claim for attorney’s fees or objection thereto.
On June 1, 2010, a hearing was held before the trial court on Complete Rehab’s motion for attorney’s fees. At the hearing, United Auto contested Complete Rehab’s entitlement to attorney’s fees based upon Complete Rehab’s pre-suit rejection of United Auto’s offer of settlement in the amount of $1215.94 and subsequent recovery of a judgment less than the pre-suit offer. The trial court rejected United Auto’s attempts to contest entitlement, specifically finding that entitlement had been established. Following the hearing, the trial court entered a Final Judgment and Order on Plaintiff’s Motion to Set Reasonable Attorney’s Fee and Costs, awarding counsel for Complete Rehab attorney’s fees in the amount of $51,981.00.2
On June 28, 2010, United Auto filed its Notice of Appeal to the trial court’s June 8, 2010 Final Judgment and Order on Plaintiff’s Motion to Set Reasonable Attorney’s Fee and Costs. In support thereof, United Auto argues that Complete Rehab is not a prevailing party under section 627.428, Florida Statutes, because it did not obtain a judgment greater than the pre-suit offer of Settlement that was tendered by United Auto. United Auto’s argument is based upon Danis Industries, Corp. v. Ground Improvement Techniques, Inc., 645 So. 2d 420 (Fla. 1994).
In opposition to United Auto’s appeal, Complete Rehab argues 1) United Auto waived the issue of entitlement to attorney’s fees by failing to timely challenge Complete Rehab’s entitlement to attorney’s fees; and 2) Complete Rehab was a prevailing party and United Auto’s argument ignores Scottsdale Insurance Company v. DeSalvo, 748 So. 2d 941 (Fla. 1999) [24 Fla. L. Weekly S422a].
An appellate court reviews a party’s entitlement to attorney’s fees pursuant to a statute de novo. Hinkley v. Gould, Cooksey, Fennell, O’Neill, Marine, Carter & Hafner, P.A., 971 So. 2d 955, 956 (Fla. 5th DCA 2007) [33 Fla. L. Weekly D74a].
Section 627.428 (1), Florida Statutes, provides:
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.
§ 627.428 (1), Fla. Stat.
Under Florida law, a “prevailing insured or beneficiary is one who has obtained a judgment greater than any offer of settlement previously tendered by the insurer.” Danis Industries, Corp., 645 So. 2d at 421. This rule applies to pre-suit settlement offers. See Greenough v. Aetna Cas. & Sur. Co., 449 So. 2d 1001, 1002 (Fla. 4th DCA 1984) (finding that the insured was not a “prevailing party” pursuant to section 627.428, Florida Statutes, because the insured did not recover more than the insurer’s pre-suit offer). As noted above, United Auto made a pre-suit offer to Complete Rehab offering to settle the claim for $1215.94, which Complete Rehab rejected. The final judgment in favor of Complete Rehab was for4 an amount less than the pre-suit offer, specifically, $527.20. Since the final judgment obtained by Complete Rehab was less than the pre-suit offer tendered by United Auto, the court finds that Complete Rehab is not a prevailing party, and therefore, is not entitled to attorney’s fees pursuant to section 627.428, Florida Statutes.
In reaching this determination, the court finds Complete Rehab’s reliance on Scottsdale Insurance Company v. DeSalvo to be misplaced as there are factual distinctions between this matter and DeSalvo. Specifically, this case involves a pre-suit offer whereas DeSalvo involved a post-suit offer.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the trial court’s Final Judgment and Order on Plaintiff’s Motion to Set Reasonable Attorney’s Fees and Costs is REVERSED AND REMANDED. Upon remand, the trial court is directed to enter an order finding that Complete Rehab is not a prevailing insured pursuant to section 627.428, Florida Statutes, and therefore, not entitled to attorney’s fees.
IT IS FURTHER ORDERED AND ADJUDGED that Appellee, Complete Rehab & Medical Center of Hollywood’s, Motion for Appellate Attorney’s Fees is DENIED.
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1This amount represents the amount of benefits remaining under the subject PIP insurance policy.
2According to the order, the amount included taxable costs and expert witness fees, along with prejudgment interest of 8%.
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