ROY PETSCHE AND JOAN PETSCHE, HUSBAND AND WIFE, APPELLANTS/CROSS-APPELLEES,
v.
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, APPELLEE/CROSS-APPELLANT
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The court held that Florida Statute § 627.428, mandating attorney's fees, is preempted by ERISA, making such awards discretionary.
This interpleader case involves an appeal and cross-appeal concerning the denial of motions for attorney's fees.…
The full statement of facts, procedural history, and disposition for this case are member content.
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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 DCA1992) (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 DCA1983).
Affirmed.
RYDER and BLUE, JJ., concur.
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Moran v. City OF Lakeland, 694 So. 2d 886 (Fla. 2d DCA 1997)…on 769.78 offer of judgment is not applicable in a federal admiralty case because it is a substantive rule in direct conflict with federal maritime law expressly requiring each party to pay their own fees); Petsche v. Prudential Ins. Co. of America, 607 So. 2d 514 (Fla. 2d DCA 1992) (state statute mandating assessment of attorney’s fees against insurers of ERISA plan is preempted by ERISA, which provides for discretionary award of said fees); Brooks v. Elliott, 593 So. 2d 1209 (Fla. 5th DCA 1992) (error to di…
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Talbott v. Am. Isuzu Motors, Inc., 934 So. 2d 643 (Fla. 2d DCA 2006)…allowed an award of attorney’s fees to prevailing defendants “in a much more limited context” than section 768.79(1), this court held that section 768.79(1) was preempted. Moran, 694 So. 2d at 887. In Petsche v. Prudential Insurance Co. of America, 607 So. 2d 514 (Fla. 2d DCA 1992), this court held that section 627.428, which mandates the assessment of attorney’s fees against insurers where a judgment is entered in favor of an insured, was preempted by 29 U.S.C. § 1132(g), which provides for a discretionary…
Authorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Nachwalter v. Christie, 805 F.2d 956 (11th Cir. 1986)
- Fla. Auto. Dealers Indus. Benefit Tr. v. Small, 592 So. 2d 1179 (Fla. 1st DCA 1992)
- Travelers Ins. Co. v. Wohl, 428 So. 2d 351 (Fla. 3d DCA 1983)