County Civil Court: INSURANCE – Attorney’s fees and costs – trial court erred in awarding attorney’s fees in PIP action when policy was issued and delivered in State of Minnesota – Florida Statutes, § 627.401(2) precludes award of attorney’s fees for policy issued out of Florida – trial court had authority to award costs – trial court abused its discretion in awarding costs for deposition that did not exist and that was canceled less than one business day before deposition due to illness of deposing attorney.  Final Judgment reversed, in part.  State Farm Mutual Automobile Ins. Co. v. Open MRI, No. 04-0008AP-88B (Fla. 6th Cir. App. Ct. Oct. 20, 2004). 










vs.                                                                                               Appeal No. 04-0008AP-88B



on behalf of Estrella Velazquez,




Opinion filed _______________________


Appeal from Final Judgment

Pinellas County Court

County Judge Walt Fullerton


Karen A. Barnett, Esquire

Deborah L. Appel, Esquire

Attorneys for Appellant


William K. Saron, Esquire

Attorney for Appellee





            THIS CAUSE came before the Court on appeal, filed by State Farm Mutual Automobile Insurance Company (State Farm), from the Final Judgment for Fees and Costs, entered January 16, 2004, in favor of Open MRI of Pinellas, Inc. (Open MRI), on behalf of Estrella Velazquez (Velazquez).  Upon review of the briefs, the record and being otherwise fully advised, the Court reverses the trial court’s judgment for fees and reverses, in part, the trial court’s judgment for costs as set forth below.

            The underlying action arose from an automobile accident, on August 24, 2001, involving Velazquez, who was covered under an insurance policy issued by State Farm to Borgez Diaz-Rodriguez, [1] that provided Personal Injury Protection (PIP) benefits.  Velazquez sought medical treatment for her injuries at Open MRI.  On December 21, 2001, Open MRI filed a complaint against State Farm alleging that State Farm had failed to pay for reasonable expenses incurred by Velazquez.  After answering the complaint, State Farm filed its Motion for Choice of Law and/or Motion to Strike, in which State Farm sought to have the trial court apply Minnesota law since the subject insurance policy had been issued and delivered in the State of Minnesota.  The trial court denied this motion.  Thereafter, on August 15, 2002, State Farm served its Proposal for Settlement, which was accepted by Open MRI on August 20, 2002.  The parties settled the claim for $650.00, exclusive of attorney’s fees and costs.  Open MRI then filed its motion for attorney’s fees and costs pursuant to Florida Statutes, § 627.428, which provides for the award of attorney’s fees upon rendition of a judgment in the insured’s favor.  After a hearing on the matter, the trial court found that Open MRI was entitled to fees and costs under § 627.428, and awarded attorney’s fees in the amount of $11,668.69 and costs in the amount of $1,793.69

            On appeal before this Court, State Farm argues that the trial court erred in finding that Open MRI was entitled to fees pursuant to Florida Statutes, § 627.428, as § 627.401(2), provides that “[n]o provision of this part applies to . . . [p]olicies or contracts not issued for delivery in this state nor delivered in this state.”   See Fla. Stat. § 627.401(2).  In response, Open MRI concedes that it was not entitled to fees under § 627.428, but contends that the trial court had the authority to award fees under the PIP statute, specifically Florida Statutes, § 627.736(8). [2]   However, the Court finds that there is no merit to this argument since the trial court specifically awarded fees pursuant to § 627.428, as requested by Open MRI in its Motion for Attorney’s Fees and Costs, filed September 16, 2002.  Further, the trial court could not award fees pursuant to § 627.736(8) since the plain language of this section merely incorporates § 627.428 into the PIP statute and does not provide an independent basis for an award of attorney’s fees.

            As attorney’s fees were only recoverable by the insured pursuant § 627.428 in this PIP action, the trial court erred as a matter of law in awarding fees since the subject policy was issued and delivered in the State of Minnesota.  Section 627.401(2) and case law clearly precludes the award of such fees when the insured’s policy was neither issued nor delivered in the State of Florida.  See Pan-American Life Ins. Co. v. Diaz, 322 So.2d 549 (Fla. 1975)(holding attorney’s fees were not recoverable by insured in suit on policy issued in Louisiana and delivered in Cuba); Aetna Life Ins. Co. v. Smith, 345 So.2d 784 (Fla. 4th DCA 1977)(finding attorney’s fees were not recoverable by insured where the policy was issued and delivered in North Carolina).  Hence, as in Diaz and Smith, the Court finds that attorney’s fees were not recoverable under the circumstances of this case.    

            In reviewing the issue of costs, the Court finds that the trial court had the authority to award costs, but abused its discretion in awarding costs for a deposition that never took place.  The record shows that of the $1,793.69 awarded for costs, $1590.00 [3] of that amount was related to the scheduled deposition of Dr. William B. Pino, M.D., which was cancelled by counsel for Open MRI, William K. Saron, Esquire, less than 1 business day before the deposition was to take place. [4]   It is undisputed that Mr. Saron cancelled the deposition on such short notice because he became ill. 

            In determining what costs should be awarded, the trial court must comply with the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions, unless the facts of the case support the trial court’s deviation from the Guidelines.  See Borja v. Nationsbank of Florida, N.A., 730 So.2d 799 (Fla. 3rd DCA 1999).  Subsection 1-E of the Guidelines states that the costs of “[d]epositions of witnesses not used at trial for any purpose and not used to support or defeat a Motion for Summary Judgment . . . should not be taxed unless the prevailing party can logically demonstrate that the taxing of such deposition . . . was reasonably necessary.  (e.a.).  The trial court made no finding that the costs associated with the canceled deposition of Dr. Pino were reasonably necessary.  Compare with Willey v. M.K. Roark, Inc., 616 So.2d 1140, 1143  (Fla. 4th DCA 1993)(concluding that trial court did not abuse its discretion in awarded costs for depositions not used at trial where trial court made specific finding that depositions were nevertheless reasonable under Item 1-E of the Guidelines).  Indeed, the trial court could not make such a finding where the deposition did not exist.  Accordingly, the Court finds that the amount of costs awarded must be reduced by $1590.00. 

            Therefore, it is,

            ORDERED AND ADJUDGED that the Final Judgment for Fees for fees is reversed and the Final Judgment for Costs is reversed, in part, as set forth above.  It is further,

            ORDERED AND ADJUDGED that the Appellee’s Motion for Appellate Attorney’s Fees and Costs is denied.

            DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this ________ day of October 2004. 






                                                                        DAVID A. DEMERS

                                                                        Circuit Judge, Appellate Division


Copies furnished to:


Judge Walt Fullerton


Karen A. Barnett, Esquire

Deborah L. Appel, Esquire

201 East Kennedy Blvd., Suite 1111

Tampa, FL  33602


William K. Saron, Esquire

1700 66th Street North, Suite 207

St. Petersburg, FL  33710                                                                                                                                                                                                                                                                                                                                                

[1] Borgez Diaz-Rodriguez was the owner of the vehicle involved in the accident.

[2] This section states, “[w]ith respect to any dispute under the provisions of ss. 627.730-627.7405 between the insured and the insurer, or between an assignee of an insured’s rights and the insurer, the provisions of s. 627.428 shall apply, except as provided in subsection (11).”

[3] Court reporter fee for deposition of Dr. Pino, $55.00; Subpoena served on Dr. Pino, $35.00; and, Cancellation fee for deposition of Dr. Pino, $1,500.00.

[4] Defendant’s Exhibit #2: Invoice # 2272, Litigation Cancellation Fees, $1,500.00.