IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN
AND
APPELLATE
DIVISION
STATE
FARM MUTUAL AUTOMOBILE
INSURANCE
COMPANY,
Appellant,
vs.
Appeal No. 04-0008AP-88B
UCN522004AP000008XXXXCV
OPEN
MRI OF PINELLAS, INC.,
on
behalf of Estrella Velazquez,
Appellee.
_________________________________________/
Opinion
filed _______________________
Appeal
from Final Judgment
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
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
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
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
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
___________________________________
DAVID A. DEMERS
Circuit Judge, Appellate Division
Copies furnished to:
Judge Walt Fullerton
Karen A. Barnett, Esquire
Deborah L. Appel, Esquire
William K. Saron, Esquire
[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.