County
Civil Court: ATTORNEY'S
FEES – Section 627.428(1), Florida Statutes, authorizes an award of attorney’s
fees to the prevailing party on appeal irrespective of the non-prevailing
party’s good faith – Appellant was the prevailing party, therefore is entitled
to attorney’s fees on appeal – order granted & remanded for determination
of attorney fees. Melka v. Mercury Ins. Co. of Fla.,
Appeal No. 09-000056AP-88B (Fla. 6th Cir. App. Ct. February 3, 2011).
NOT
FINAL UNTIL TIME EXPIRES FOR REHEARING
AND,
IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH
JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
APPELLATE DIVISION
STEVEN
MELKA,
Appellant, Ref. No.: 09-000056AP-88B
v. UCN: 522009AP000056XXXXCV
MERCURY
INSURANCE
COMPANY
OF FLORIDA,
Appellee.
_____________________________/
ORDER
THIS
CAUSE is before the Court by Appellant Steven Melka’s Motion for Attorney’s
Fees on Appeal, filed on May 6, 2010, and Appellee’s response. Upon consideration, the Court finds that
Appellant is the prevailing party on appeal and is entitled to an award of
fees.
On
November 15, 2010, this Court reversed the County Court’s Order of Final
Summary Judgment in favor of Appellee and remanded the matter to the County
Court for further proceedings consistent with the Order. Specifically, this Court found that under a
supervening Florida Supreme Court decision, the pre-suit notice requirement
that Appellant must allow thirty days for Appellee to respond before filing
suit, effective January 1, 2008, does not apply retroactively to Appellant’s
lawsuit. See Menendez v. Progressive Express Ins. Co., 35 So. 3d 873 (Fla.
2010).
Appellant
filed a motion for attorney’s fees on appeal under § 627.428(1), Florida
Statutes, which provides as follows:
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.
Id. (emphasis
supplied); see also Arango v. United
Auto. Ins. Co., 901 So. 2d 320 (Fla. 3d DCA 2005). In Arango,
the court construed § 627.428 to mandate an award of attorney’s fees when an
insured prevails in an action against the insurer, regardless of whether the
appellate court decides the merits of the case.
Id. at 321-22.
In opposition, Appellee argues that Appellant
prevailed on appeal only because a recent Florida Supreme Court decision
altered the relevant law and Appellee acted reasonably in disputing Appellant’s
underlying claim. In disputing the
attorney’s fees, however, Appellee ignores the plain language of the statute and
case law. Section 627.428 authorizes an
award of attorney’s fees to the prevailing party on appeal irrespective of the
non-prevailing party’s good faith. See Abrego, 901 So. 2d at 322.
Accordingly, it is
ORDERED
that
Appellant’s Motion for Attorney’s Fees on Appeal is GRANTED. This matter is remanded to the County Court
for a determination of the amount of reasonable attorney’s fees.
DONE
AND ORDERED in
Chambers at St. Petersburg, Florida, on February ___, 2011.
Original order entered on February 3, 2011 by Circuit Judge Amy M.
Williams.
Copies
furnished to:
The
Honorable Myra S. McNary
Clearwater
Historic Courthouse
324
South Fort Harrison Avenue
Clearwater,
FL 33756
James
J. Dowling, Esquire
1150
Tampa Road
Palm
Harbor, FL 34683
Attorney
for Appellant
David
B. Kampf, Esquire
400
North Ashley Drive, Suite 1625
Tampa,
FL 33602
Attorney
for Appellee