County Civil Court: ATTORNEY’S FEES – PIP benefits – plain language of 627.428 provides that attorney’s fees may not be awarded for time spent litigating the amount of attorney’s fees – attorney’s fees may be awarded for litigating the entitlement to fees – trial court correctly ruled that plaintiff was not entitled to attorney’s fees - Order affirmed.  Chiromed Chiropractic Center, Inc. v. Allstate Ins. Co., No. 03-5022AP-88B (Fla. 6th Cir. App. Ct. April 16, 2004). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CURCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

CHIROMED CHIROPRACTIC CENTER, INC.,

                                                Appellant,                      Circuit Appeal:

                                                                                       UNC: 522003AP005022XXXXCV

vs.                                                                                   Ref: 03-5022AP-88B

 

ALLSTATE INSURANCE COMPANY,                     County Court:

                                                Appellee.                         UNC: 522001CC006442XXCOCO

                                                                                       Ref: 01-6442-CO-40

____________________________________/          

 

Opinion filed________________________

 

Appeal from Final Judgment

Pinellas County Court

Judge Henry J. Andringa

 

Brenda A. Baietto, Esquire

Attorney for Appellant

 

Charles W. Hall, Esquire

Attorney for Appellee 

 

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by Chiromed Chiropractic Center, Inc. (Chiromed), from the Order Denying Plaintiff’s Motion for Attorney’s Fees, entered June 9, 2003, in favor of Allstate Insurance Company (Allstate).  Upon review of the briefs, the record and being otherwise fully advised, the Court affirms the Order.

            The underlying proceedings began when Chiromed sued Allstate for unpaid medical benefits, interest and attorney fees.  Allstate paid the overdue benefits plus interest but did not pay attorney fees.  Allstate litigated the attorney’s fees issue and eventually settled with Plaintiff for attorney’s fees that did not include fees for time spent litigating over the amount for attorney’s fees.  Thereafter, Plaintiff filed a Motion requesting an award of attorney’s fees for having to litigate over the amount of attorney’s fees.  The trial court denied Plaintiff’s Motion. 

            The Plaintiff raises two issues on appeal: (1) whether the trial court erred when it declined to award attorney’s fee for time spent litigating the amount of attorney’s fees; and, (2) whether the issue in this case, fees for fees, should be certified to the Second District as a matter of great public importance.

            The Court finds that the law is well settled with regard to the issues in this case.  As to the first issue, the trial court correctly ruled that Plaintiff was not entitled to attorney’s fees for litigating the amount of fees.  In State farm Fire & Casualty Co. v. Palma, 629 So.2d 830, 833 (Fla. 1993), the Florida Supreme Court held that pursuant to the plain language of Section 627.428, attorney’s fees may not be awarded for time spent litigating the amount of attorney’s fees, though it may be properly awarded for litigating the issue of entitlement to attorney’s fees.  The Plaintiff argued that the fees should be awarded because it will directly benefit the insured by releasing its obligation for the unpaid fees.  However, in Mediplex Const. of Fla., Inc. v. Schaub, 856 So. 2d 13 (Fla. 4th DCA 2003) and Mangel v. Bob Dance Dodge, Inc., 739 So. 2d 720 (Fla. 5th DCA 1999), the courts held that a plaintiff’s fee arrangement with its attorney is not determinative of the fees it is entitled to recover under section 627.426.  Furthermore, the Court is bound by the opinion of the Florida Supreme Court in Palma, which stated that “[i]f the scope of section 627.428 is to be expanded to include fees for time spent litigating the amount of attorney’s fees, then the Legislature, rather than this Court, is the proper party to do so.”

With regard to the second issue, the Court declines to certify the issue about fees for fees to the Second District Court of Appeals.  Only the County Court has jurisdiction to certify a matter of great public importance to the Second District.  See Fla. R. App. P. Rule 9.030(b)(4)(A), see also Star Casualty v. U.S.A. Diagnostics, Inc, 855 so.2d 251, 252 (Fla. 4th DCA 2003) ( stating that “the district court of appeal has discretionary jurisdiction to accept jurisdiction of appeals from final judgments of the county court in which the county court certifies a question of great public importance.”)  

Therefore, it is,

            ORDERED AND ADJUDGED that the Order Denying Plaintiff’s Motion for Attorney’s Fees is affirmed.

            DONE AND ORDERED in chambers, at Clearwater, Pinellas County, Florida this ______ day of April 2004.

                                                                                                                                                                                                            __________________________

                                                            DAVID A. DEMERS

                                                            Circuit Judge, Appellate Division

 

Copies furnished to:

Judge Henry J. Andringa

 

Brenda A. Baietto, Esquire

2102 West Cleveland Street

Tampa, FL 33606

 

Charles W. Hall, Esquire

501 First Avenue North (Zip code 33701)

Post Office Box 210

St. Petersburg, FL 33731