MERCURY INSURANCE COMPANY OF FLORIDA, PETITIONER,
v.
RPM MEDICAL CENTER, INC. (A/A/O HERMER J. GAROFALO), RESPONDENT
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Florida appellate court quashed an award of appellate attorney's fees under section 627.428(1) because the fee award should have been conditioned on the respondent ultimately prevailing in the underlying proceeding.
An award of appellate attorney's fees under section 627.428(1), Florida Statutes, must be conditioned upon the respondent ultimately prevailing in the underlying proceeding.
[1] An award of appellate attorney's fees under section 627.428(1), Florida Statutes, must be conditioned upon the respondent ultimately prevailing in the underlying proceedi…
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Join FLexlaw to unlock all legal intelligence“[Section 627.428(1) provides that an insured will be entitled to an attorney's fee award when coverage is disputed and the insured prevails.]”
Court citing Petty v. Fla. Ins. Guaranty Ass'n to establish the statutory requirement that prevailing is a condition for attorney's fees.
Mercury Insurance Company of Florida sought certiorari review of an appellate division decision that reversed summary judgment entered in county court…
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Upon review of the petition and the response, this Court denies the petition for writ of certiorari in part and grants the petition in part. The petition is denied as to the appellate division’s decision reversing the summary judgment entered in the county court. However, we grant the petition and quash the award of appellate attorney’s fees to respondent. Respondent properly concedes that the award of appellate attorney’s fees, pursuant to section 627.428(1), Florida Statutes, should have been conditioned upon respondent ultimately prevailing in the underlying proceeding. See Guadagno v. United Auto. Ins. Co., 88 So.3d 246 (Fla. 3d DCA 2011); Ramirez v. United Auto. Ins. Co., 67 So.3d 1174 (Fla. 3d DCA 2011); Comprehensive Health Ctr., LLC v. United Auto. Ins. Co., — So.3d -, 2011 WL 2848667 (Fla. 3d DCA 2011); see also Tench v. Am. Reliance Ins. Co., 671 So.2d 801 (Fla. 3d DCA 1996) (on clarification); Allstate Ins. Co. v. De La Fe, 647 So.2d 965 (Fla. 3d DCA 1994). See generally Petty v. Fla. Ins. Guaranty Ass’n, 80 So.3d 313 (Fla.2012) (“[Section 627.428(1) provides that an insured will be entitled to an attorney’s fee award when coverage is disputed and the insured prevails.”). Accordingly, the award of appellate attorney’s fees is quashed and the cause is remanded to the circuit court for entry of a conditional award of appellate attorney’s fees to respondent.
Petition granted in part and denied in part.
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Citator
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State Farm Mut. Auto. Ins. Co. v. PRO Health Pain Relief Ctr., Inc., 185 So. 3d 712 (Fla. 3d DCA 2016)…we agree, that “the award of appellate attorney’s fees/ pursuant to section 627.428(1), Florida Statutes, should have been conditioned upon respondent ultimately prevailing in the underlying proceeding.” Mercury Ins. Co. of Fla. v. RPM Medical Ctr., 89 So. 3d 261, 262 (Fla. 3d DCA 2012) (citing Guadagno v. United Auto. Ins. Co., 88 So. 3d 246 (Fla. 3d DCA 2011)) (other [*713] citations' omitted). In Guadagno, this Court held, “the circuit court, acting in its appellate capacity, should have awarded petitione…
Authorities Cited
- Ramirez v. United Auto. Ins. Co., 67 So. 3d 1174 (Fla. 3d DCA 2011)
- Petty v. Fla. Ins. Guar. Ass'n, 80 So. 3d 313 (Fla. 2012)
- Allstate Ins. Co. v. DE LA FE, 647 So. 2d 965 (Fla. 3d DCA 1994)
- A. Carlo Guadagno, D.C., P.A. v. United Auto. Ins. Co., 88 So. 3d 246 (Fla. 3d DCA 2011)
- Tench v. Am. Reliance Ins. Co., 671 So. 2d 801 (Fla. 3d DCA 1996)