WILLIAM ARANGO, PETITIONER,
v.
UNITED AUTOMOBILE INSURANCE COMPANY, RESPONDENT
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Arango, the successful plaintiff in a personal injury protection action against his insurer, sought appellate attorneys' fees after the insurer's appeal was dismissed for failure to timely file its brief. The court held that an insured prevails for purposes of section 627.428 even when an insurer's appeal is dismissed without a decision on the merits, entitling the insured to appellate attorneys' fees.
An insured is entitled to appellate attorneys' fees under section 627.428 when an insurer commences an appeal that is thereafter dismissed without a decision on the merits, because the insured becomes the prevailing party for purposes of the statute even in the absence of a merits decision.
[1] An insured who successfully defends an appeal initiated by their insurer is entitled to attorneys' fees under section 627.428 of the Florida Statutes, even if the appeal…
[2] A dismissal of an insurer's appeal constitutes a "prevailing" for the insured under section 627.428 of the Florida Statutes, entitling the insured to attorneys' fees.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Section 627.428 mandates that an insured be awarded attorneys' fees when he is the prevailing party on appeal in an action against his insurer.”
Establishes the mandatory nature of the fee award when an insured is the prevailing party.
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Join FLexlaw to unlock all legal intelligenceWilliam Arango won a personal injury protection action against United Automobile Insurance Company in Miami-Dade County Court in January 2003, and was…
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SHEPHERD, J.
The petitioner seeks review of a final order of the circuit court appellate division-denying his renewed motion for attorneys’ fees. We have jurisdiction, Article 5, section 4(b)(3) of the Florida Constitution-and Florida Rule of Appellate Procedure 9.030(b)(2)(b), and grant the writ.
William Arango, the petitioner, was the successful plaintiff in a personal injury protection action filed against his insurer, United Automobile Insurance Company, in Miami-Dadé County Court.
In January 2003 the county court awarded Arango attorneys’ fees pursuant to section 627.428 of the Florida Statutes (2003). United Auto appealed the fee award to the circuit court appellate division. After United Auto failed to avail itself of numerous time extensions to file its initial brief and a final warning, see United Auto. Ins. Co. v. Total Rehab and Medical Ctr., 870 So. 2d 866 (Fla. 3d DCA 2004), the court sua sponte dismissed the appeal for failure to timely file -its brief.
However, the circuit court appellate panel declined to award petitioner attorneys’ fees on the ground that the petitioner did not prevail on the merits of the appeal. We quash the order denying petitioner’s renewed motion for attorneys’ fees.
Section 627.428 mandates that an insured be awarded attorneys’ fees when he is the prevailing party on appeal in an action against his insurer. United Auto’s appeal was perfected and section 627.428 became applicable when it filed its notice of appeal on January 17, 2003. We construe the prevailing party clause in the appellate fee portion of section 627.428, which mandates a fee award “in'the event of an appeal in which the insured or beneficiary prevails” to include cases in which an insurer commences an appeal, but the appeal is then dismissed without a decision on the merits. We are guided to this result by the Florida Supreme Court’s opinion in Home Ins. Co. v. Drescher, 220 So. 2d 902, 903 (Fla.1969).
In that case, an insurer sought a writ of certiorari in the Florida Supreme Court to review a decision of this court adverse to the carrier on a question of insurance coverage. The Florida Supreme. Court initially granted the petition, but later discharged the writ as being improvidently granted. Despite not reaching the merits of the petition, the Florida Supreme Court granted the respondent Drescher’s application for attorneys fees filed under the predecessor to the current fee statute, which language insofar as pertinent here was identical, and awarded Drescher $750 for its fees incurred in the Florida Supreme Court. Similarly here, when the circuit court appellate division dismissed United Auto’s appeal below, Arango became the prevailing party for purposes of section 627.428.
We conclude that as the prevailing party on appeal below, Arango is legally entitled to appellate attorneys’ fees under section 627.428, notwithstanding the fact that there was no decision on the merits. By failing to grant the motion, the circuit court appellate division departed from the essential requirements of law. See Motter Roofing, Inc. v. Leibowitz, 833 So. 2d 788 (Fla. 3d DCA 2002) (holding that the circuit court sitting in its appellate capacity departed from the essential requirements of law by denying petitioner’s application for mandatory appellate attorneys fees under section 768.79(1) of the Florida Statutes).
Accordingly, we quash the order below and remand with directions that petitioner be awarded his appellate attorneys’ fees in this case.
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Ramirez v. United Auto. Ins. Co., 67 So. 3d 1174 (Fla. 3d DCA 2011)…ive Health Ctr., LLC, — So. 3d at — (quashing erroneous denial of appellate attorney’s fees by circuit court); Hollywood Injury Rehab Ctr., 985 So. 2d at 1222 (same); Prof'l Med. Grp., Inc., 967 So. 2d at 244 (same); Arango v. United Auto. Ins. Co., 901 So. 2d 320, 322 (Fla. 3d DCA 2005) (same); see also United Auto. Ins. Co. v. Salgado, 22 So. 3d 594, 598 n. 2 (Fla. 3d DCA 2009) (granting certiorari on second-tier review of circuit court appellate division per curiam affirmance), review dismissed, 31 So. 3d…
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Sanchez v. State Farm Fla. Ins. Co., 997 So. 2d 1209 (Fla. 3d DCA 2008)…fs were filed. The only papers filed here by the appellee were a three-paragraph motion to impose sanctions and a four-paragraph motion for attorney’s fees. The issue is not whether the appellee “prevailed” here, see Arango v. United Auto. Ins. Co., 901 So. 2d 320 (Fla. 3d DCA 2005), but rather whether fees and costs must be remanded, a further trial court hearing set, and additional judicial labor incurred, for activity best characterized as “de minimis.” Motion denied. CORTIÑAS and SALTER, JJ., concur.…
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Hollywood Injury Rehab Ctr. v. United Auto. Ins. Co., 985 So. 2d 1221 (Fla. 3d DCA 2008)…should have been awarded to Hollywood Center as the prevailing party. “Section 627.428 mandates that an insured be awarded attorneys’ fees when he is the prevailing party on appeal in an action against his insurer.” Arango v. United Auto. Ins. Co., 901 So. 2d 320, 321 (Fla. 3d [*1222] DCA 2005). It is undisputed that Hollywood Center was the prevailing party on appeal in an action against its insurer. As such, Hollywood Center is entitled to appellate attorney’s fees pursuant to section 627.428. By failing t…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pascual v. State, 870 So. 2d 866 (Fla. 3d DCA 2004)
- Motter Roofing, Inc. v. Leibowitz, 833 So. 2d 788 (Fla. 3d DCA 2002)
- Link Elliott v. Goodwill Indus. OF S. Fla., 220 So. 2d 902 (Fla. 1969)
- The Home Ins. Co. v. Drescher, 220 So. 2d 902 (Fla. 1969)