Petsche v. Prudential Insurance Company of America , 607 So. 2d 514 ( 1992 )

607 So. 2d 514 (1992)

Roy PETSCHE and Joan Petsche, husband and wife, Appellants/Cross-Appellees,
v.
The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellee/Cross-Appellant.

No. 91-03698.

District Court of Appeal of Florida, Second District.

November 13, 1992.

James E. Thompson and Steven K. Barber of Fowler, White, Gillen, Boggs, Villareal and Banker, P.A., Tampa, for appellants/cross-appellees.

Charles W. Pittman of MacFarlane, Ferguson, Tampa, for appellee/cross-appellant.

LEHAN, Chief Judge.

In this interpleader case there is an appeal and a cross appeal. As to the appeal, we affirm the denial of the motion for attorney's fees filed by appellants to whom the interpleaded proceeds of an insurance plan were awarded. The parties agree that the plan is subject to the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001 et seq. Section 627.428, Florida Statutes (1987), which mandates the award of such fees, is preempted by ERISA, 29 U.S.C. § 1132(g), which provides that the award of such fees is discretionary. As the First District pointed out in Florida Automobile Dealers Industry Benefit Trust v. Small, 592 So. 2d 1179, 1182-3 (Fla. 1st DCA 1992) (on motion for rehearing),

[T]wo state appellate courts have specifically ruled that state statutes authorizing the assessment of attorney's fees against insurers of ERISA plans were preempted by federal law... .

[W]e agree with appellant's contention that the states are preempted by federal law from applying inconsistent state statutes imposing attorney's fees upon the insurers of [plans] which comply with the provisions of ERISA.

Under the circumstances of this case we find no abuse of discretion in the denial of the motion. See Nachwalter v. Christie, 805 F.2d 956, 961-62 (11th Cir.1986). See also Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980).

As to the cross appeal, we affirm the denial of the motion for attorney's fees filed by Prudential. See Rafter v. Miami Gables Realty, Inc., 428 So. 2d 351, 354 (Fla. 3d DCA 1983).

Affirmed.

RYDER and BLUE, JJ., concur.