04-0163 ARANGO V. UNITED

SUPREME COURT CASES

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State: Florida

Court: Florida Southern District Court

Docket No: 3d04-0163

Case Date: 05/04/2005

Plaintiff: 04-0163 ARANGO

Defendant: UNITED

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM A.D., 2005 ** ** Petitioner, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent. ** ** ** ** LOWER TRIBUNAL NO. 03-045 AP CASE NO. 3D04-163

WILLIAM ARANGO,

Opinion filed May 4, 2005. A Writ of Certiorari to the Circuit Court for Miami-Dade County, Stuart M. Simons, Arthur Rothenberg and Judith L. Kreeger, JJ. Deehl & Carlson, P.A., and David L. Deehl, for petitioner. Michael J. Neimand, for respondent. Before COPE, WELLS and SHEPHERD, JJ. SHEPHERD, J. The petitioner seeks review of a final order of the circuit court appellate division denying his renewed motion for

attorneys' fees.

We have jurisdiction, Article 5, section 4(b) (3)

of

the

Florida

Constitution

and

Florida

Rule

of

Appellate

Procedure 9.030(b) (2) (b), and grant the writ. William Arango, the petitioner, was the successful

plaintiff in a personal injury protection action filed against his insurer, United Automobile Insurance Company, in Miami-Dade County Court. In January 2003 the county court awarded Arango

attorneys' fees pursuant to section 627.428 of the Florida Statutes (2003). United Auto appealed the fee award to the circuit court After United Auto failed to avail itself of

appellate division.

numerous time extensions to file its initial brief and a final warning, see United Auto. Ins. Co. v. Total Rehab and Medical Ctr., 870 So. 2d 866 (Fla. 3d DCA 2004), the court sua sponte dismissed the appeal for failure to timely file its brief.

However, the circuit court appellate panel declined to award petitioner attorneys' fees on the ground that the petitioner did not prevail on the merits of the appeal. We quash the order

denying petitioner's renewed motion for attorneys' fees. Section 627.428 mandates that an insured be awarded

attorneys' fees when he is the prevailing party on appeal in an action against his insurer. United Auto's appeal was perfected

and section 627.428 became applicable when it filed its notice of appeal on January 17, 2003. We construe the prevailing party

clause in the appellate fee portion of section 627.428, which mandates a fee award "in the event of an appeal in which the

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insured or beneficiary prevails" to include cases in which an insurer commences an appeal, but the appeal is then dismissed without a decision on the merits. by the Florida Supreme Court's We are guided to this result opinion in Home Ins. Co. v.

Drescher, 220 So. 2d 902, 903 (Fla. 1969).

In that case, an

insurer sought a writ of certiorari in the Florida Supreme Court to review a decision of this court adverse to the carrier on a question of insurance coverage. The Florida Supreme Court

initially granted the petition, but later discharged the writ as being improvidently granted. Despite not reaching the merits of

the petition, the Florida Supreme Court granted the respondent Drescher's application for attorneys fees filed under the

predecessor to the current fee statute, which language insofar as pertinent here was identical, and awarded Drescher $750 for its fees incurred in the Florida Supreme Court. when the circuit court appellate became division the Similarly here, dismissed United for

Auto's

appeal

below,

Arango

prevailing

party

purposes of section 627.428. We conclude that as the prevailing party on appeal below, Arango is legally entitled to appellate attorneys' fees under section 627.428, notwithstanding the fact that there was no

decision on the merits. circuit court appellate

By failing to grant the motion, the division departed from the essential

requirements of law.

See Motter Roofing, Inc. v. Leibowitz, 833

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So. 2d 788 (Fla. 3d DCA 2002) (holding that the circuit court sitting in its appellate capacity departed from the essential requirements of law by denying petitioner's application for

mandatory appellate attorneys fees under section 768.79(1) of the Florida Statutes). Accordingly, we quash the order below and remand with

directions that petitioner be awarded his appellate attorneys' fees in this case.

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