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Brass & Singer9/21/2005
Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ.
This is a petition for writ of certiorari whereby the petitioner challenges an order of the circuit court, appellate division, which denied a claim for appellate attorney's fees. We deny the petition for writ of certiorari but certify direct conflict.
I.
This case originated as a county court lawsuit over personal injury protection (PIP) benefits. The insured, Mildred Solages, assigned her benefits to the petitioner physicians, Brass & Singer, P.A., ("the doctors"). The county court denied a motion by the respondent insurer, United Automobile Insurance Company ("the insurer") for a continuance. The doctors prevailed at trial and the insurer appealed.
A three-judge panel of the circuit court reversed and remanded for a new trial. The appellate division concluded that under the circumstances presented, it had been an abuse of discretion to deny the insurer's motion for continuance.
The doctors had filed a motion for appellate attorney's fees under section 627.428, Florida Statutes (2004). The doctors had, of course, lost the appeal. The doctors contended, however, that they should be conditionally granted appellate attorney's fees, to be paid to them if they recovered judgment against the insurer at the conclusion of the case. The appellate division denied the doctors' motion for attorney's fees on authority of Nationwide Mut. Ins. Co. v. Nu-Best Diagnostic Labs, Inc., 810 So. 2d 514 (Fla. 5th DCA 2002). The doctors have petitioned for a writ of certiorari.
II.
There is currently a conflict between the Fourth and Fifth Districts on how to interpret section 627.428, Florida Statutes, in the present circumstances.
The Fourth District has taken the position that where an insured loses an appeal but the matter is remanded for a new trial, the correct procedure is for the appellate court to conditionally grant appellate attorney's fees and remand for a determination of the amount, contingent on the insured recovering judgment against the insurer at the conclusion of the case. See Gedeon v. State Farm Mut. Auto. Ins. Co., 805 So. 2d 119 (Fla. 4th DCA 2002); Aksomitas v. Maharaj, 771 So. 2d 541, 543-45 (Fla. 4th DCA 2000) (en banc).
The Fifth District takes the position that where, as here, the insured loses the appeal but there will be a new trial, the insured is not entitled to any appellate attorney's fees for the appeal which the insured has lost. See Nu-Best, 810 So. 2d at 515; see also Philip J. Padovano, Florida Appellate Practice ยง 20.5 (2005); Tracy Raffles Gunn, Attorneys' Fees on Appeal: Basic Rules and New Requirements, 76 Fla.B.J. 31 (April 2002).
We entirely agree with the ruling of the appellate division, and endorse the Fifth District's opinion in Nu-Best. As the Nu-Best court explained, the legal analysis here is governed by the words used in the statute, which: provides for awards of appellate fees to insureds who prevail against the insurer:
627.428. Attorney's fee (1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured's or beneficiary's attorney prosecuting the suit in which the recovery is had.
(Emphasis added). The [italicized] words control the outcome of Nu-Best's
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