PROGRESSIVE EXPRESS INSURANCE COMPANY, PETITIONER,
v.
MIAMI DADE HEALTH & REHAB SERVICES, AS ASSIGNEE OF IDALIA CEDRES, RESPONDENT
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Progressive Express Insurance Company challenged a circuit court order awarding appellate attorney fees to Miami Dade Health & Rehab Services under Florida Statute section 627.428(1), even though Miami Dade HRS lost the appeal. The court granted the petition, quashing the fee award and holding that a party losing an appeal is not entitled to appellate attorney fees under section 627.428(1), while certifying direct conflict with Fourth District decisions.
A party that loses an appeal is not entitled to appellate attorney fees under section 627.428(1), regardless of whether it ultimately prevails at trial on the merits. The court quashed the fee award granted to Miami Dade HRS because it was the unsuccessful party on appeal.
[1] A party is not entitled to appellate attorney fees under section 627.428(1) of the Florida Statutes when it loses an appeal, even if that party ultimately prevails on the…
[2] An order awarding appellate attorney fees to an unsuccessful party on appeal is subject to certiorari review.
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“an insured is not entitled to appellate attorney fees under section 627.428(1) when it loses an appeal, even if the insured ultimately prevails at a trial on the merits”
Establishes the core legal rule that loss on appeal disqualifies a party from seeking appellate attorney fees under the statute, regardless of eventual trial success.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIdalia Cedres assigned her personal injury protection (PIP) insurance benefits to Miami Dade Health & Rehab Services. Miami Dade HRS sued Progressive …
The full statement of facts, procedural history, and disposition for this case are member content.
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SHEPHERD, J.
Petitioner, Progressive Express Insurance Company, seeks certiorari review of an order of the circuit court, appellate division, which granted Respondent, Miami Dade Health & Rehab Services’ (Miami Dade HRS) motion for appellate attorney fees pursuant to section 627.428(1) of the Florida Statutes even though Miami Dade HRS did not prevail on the appeal. We grant the petition but certify direct conflict.
We find that this case is factually indistinguishable from our recent decision in Brass & Singer P.A. v. United Auto. Ins. Co., 919 So. 2d 473 (Fla. 3d DCA 2005). Like Brass & Singer, this case originated as a county court lawsuit over personal injury protection (PIP) benefits. The insured, Idalia Cedres, assigned her benefits to the respondent, Miami Dade HRS. Mia-' mi Dade HRS then sued Cedres’ PIP carrier, Progressive. Ultimately, the county court granted summary judgment to Miami Dade HRS, and Progressive appealed.
On appeal, Miami Dade HRS filed a conditional motion for attorney fees pursuant to section 627.428(1) of the Florida Statutes (2004) in which it asked the circuit court, appellate division, to enter an order awarding it appellate fees in the event that it ultimately prevailed on the merits of the case.
The circuit court, appellate division, reversed the judgment of the county court, finding that there were genuine issues of material fact which precluded the granting of summary judgment. Although Miami Dade HRS was the unsuccessful party on appeal, the court nevertheless awarded Miami Dade HRS its appellate attorney fees pursuant to its motion.
We have recently held on facts nearly identical to those before us here that an insured is not entitled to appellate attorney fees under section 627.428(1) when it loses an appeal, even if the insured ultimately prevails at a trial on the merits. See Brass & Singer, (adopting the reasoning of Nationwide Mut. Ins. Co. v. Nur-Best Diagnostic Labs, Inc., 810 So. 2d 514 (Fla. 5th DCA 2002)). Miami Dade HRS was the losing party on appeal in this case.
Accordingly, Miami Dade HRS is not entitled to attorney fees under section 627.428(1), whatever the ultimate outcome of the case may be. We grant the petition and quash the order below. In so doing, we certify direct conflict with Gedeon v. State Farm Mut. Auto. Ins. Co., 805 So. 2d 119, 120 (Fla. 4th DCA 2002) and Aksomitas v. Maharaj, 771 So. 2d 541, 543-45 (Fla. 4th DCA 2000).
Petition granted; order quashed; direct conflict certified.
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Millennium Diagnostic Imaging Ctr., Inc. v. Sec. Nat'l Ins. Co., 882 So. 2d 1027 (Fla. 3d DCA 2004)
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Otano v. Star Cas. Ins. Co., 927 So. 2d 1010 (Fla. 3d DCA 2006)…On Motion For Rehearing and/Or Clarification PER CURIAM. We grant the petitioner’s motion for rehearing. The petition for writ of certiorari is denied on the authority of Progressive Express Insurance Co. v. Miami Dade Health & Rehab Services, 922 So. 2d 221 (Fla. 3d DCA 2005), and Brass & Singer, P.A. v. United Automobile Insurance Co., 919 So. 2d 473 (Fla. 3d DCA 2005). However, as in these cases, we certify conflict with Gedeon v. State Farm Mut. Auto. Ins. Co., 805 So. 2d 119 (Fla. 4th DCA 2002).…
Authorities Cited
- Aksomitas v. Sabitra Maharaj, 771 So. 2d 541 (Fla. 4th DCA 2000)
- Nationwide Mut. Ins. Co. v. Nu-Best Diagnostic Labs, Inc., 810 So. 2d 514 (Fla. 5th DCA 2001)
- Brass & Singer, P.A. v. United Auto. Ins. Co., 919 So. 2d 473 (Fla. 3d DCA 2005)
- Ema Gedeon v. State Farm Mut. Auto. Ins. Co., 805 So. 2d 119 (Fla. 4th DCA 2002)