UNITED AUTOMOBILE INSURANCE COMPANY v. ALLIANCE SPINE & JOINT I, INC. a/a/o SHARON MCCARTNEY ( 2023 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation,
Appellant,
v.
ALLIANCE SPINE AND JOINT I, INC., a/a/o SHARON McCARTNEY,
Appellee.
No. 4D21-3223
[February 15, 2023]
Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; Corey Amanda Cawthon, Judge; L.T. Case No. COSO20-
007745.
Michael J. Neimand, House Counsel of United Automobile Insurance
Co., Miami, for appellant.
Chad A. Barr of Chad Barr Law, Altamonte Springs, for appellee.
ARTAU, J.
The insurer in this personal injury protection (PIP) benefits case
appeals from an adverse final judgment awarding attorney’s fees and
costs, pursuant to section 627.428, Florida Statutes (2014), to a medical
services provider following the insurer’s payment of the amounts claimed
to be due for care provided to the insured following her involvement in a
2015 car accident. While we affirm the trial court’s award of costs, we
reverse the portion of the judgment awarding attorney’s fees to the
provider’s counsel after the insurer stipulated to the provider’s entitlement
to fees.
The insurer paid the provider all disputed benefits pursuant to a
confession of judgment which included a stipulation to the provider’s
“entitlement to reasonable attorney’s fees” up to the date of the payment.
After the stipulation was filed, the parties litigated the compensability of
the provider’s counsel’s pre-suit work on the case as well as his time spent
successfully defending against the insurer’s attempt to dispense with the
need for experts on the issue of the reasonableness of the amount claimed
in fees. The trial court determined that these contested hours were spent
litigating the entitlement to, rather than the amount of, attorney’s fees and
therefore determined the time compensable in the total fee awarded. We
disagree.
“[A]ttorney’s fees may properly be awarded under section 627.428 for
litigating the issue of entitlement to attorney’s fees.” State Farm Fire &
Cas. Co. v. Palma, 629 So. 2d 830, 833 (Fla. 1993). Attorney’s fees may
not be awarded “for litigating the amount of attorney’s fees” to be awarded
because “[t]he language of the statute does not support such a
conclusion.” Id. Moreover, an insurer or surety “relieves itself from further
exposure” for attorney’s fees, pursuant to section 627.428, “at the point in
time that the insurer or surety offers in settlement the full amount which
the insured or beneficiary would be entitled to recover from the insurer or
surety at the time the offer is made.” Danis Indus. Corp. v. Ground
Improvement Techs., Inc., 645 So. 2d 420, 422 (Fla. 1994).
Given the insurer’s stipulation to the provider’s entitlement to
attorney’s fees in this case, the attorney’s fees spent addressing the
compensability of the pre-suit work and defending against the insurer’s
attempt to dispense with the need for experts on the issue of the
reasonableness of the amount claimed in fees should not have been
included in the fee award because those fees were expended to address the
proper amount of a fee award. We therefore reverse that portion of the
judgment improperly awarding the provider attorney’s fees for litigating
the amount to be awarded, affirm the award of costs, and remand for
further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded with instructions.
MAY and GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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