05-0951 BRASS & SINGER V. UNITED AUTO

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State: Florida

Court: Florida Third District Court

Docket No: 05-0951 BRASS & SINGER V. UNITED AUTO

Case Date: 09/21/2005

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 JULY TERM, A.D. 2005 BRASS & SINGER, P.A., a/o/a MILDRED SOLAGES, Petitioner, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent. ** ** ** ** ** ** LOWER TRIBUNAL NOS. 01-18679 SP 04-173 AP CASE NO. 3D05-951

Opinion filed September 21, 2005. A Writ of Certiorari to the Circuit Court for Miami-Dade County, Maria M. Korvick, Gisela Cardonne-Ely, and Ronald Dresnick, Judges. Stephens, Lynn, Klein, La Cava, Hoffman & Puya, P.A., and Marlene S. Reiss, for petitioner. Michael J. Neimand, for respondent. Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ. COPE, C.J. This is a petition for writ of certiorari whereby the

petitioner challenges an order of the circuit court, appellate division, which denied a claim for appellate attorney's fees.

We deny the petition for writ of certiorari but certify direct conflict. I. This case originated as a county court lawsuit over

personal injury protection (PIP) benefits. Solages, assigned her benefits to the

The insured, Mildred physicians,

petitioner

Brass & Singer, P.A., ("the doctors").

The county court denied

a motion by the respondent insurer, United Automobile Insurance Company ("the insurer") for a continuance. The doctors

prevailed at trial and the insurer appealed. A three-judge panel of the circuit court reversed and

remanded for a new trial.

The appellate division concluded

that under the circumstances presented, it had been an abuse of discretion to deny the insurer's motion for continuance. The doctors had filed a motion for appellate attorney's fees under section 627.428, Florida Statutes (2004). The

doctors had, of course, lost the appeal. however, that they should be

The doctors contended, granted appellate

conditionally

attorney's fees, to be paid to them if they recovered judgment against appellate fees on the insurer at the the conclusion doctors' Mut. of the case. The

division authority

denied of

motion Ins.

for Co.

attorney's v. Nu-Best

Nationwide

2

Diagnostic Labs, Inc., 810 So. 2d 514 (Fla. 5th DCA 2002). doctors have petitioned for a writ of certiorari.1 II.

The

There is currently a conflict between the Fourth and Fifth Districts on how to interpret section 627.428, Florida Statutes, in the present circumstances. The Fourth District has taken the position that where an insured loses an appeal but the matter is remanded for a new trial, the correct procedure is for the appellate court to

conditionally grant appellate attorney's fees and remand for a determination of the amount, contingent on the insured

recovering judgment against the insurer at the conclusion of the case. See Gedeon v. State Farm Mut. Auto. Ins. Co., 805 So. 2d

119 (Fla. 4th DCA 2002); Aksomitas v. Maharaj, 771 So. 2d 541, 543-45 (Fla. 4th DCA 2000) (en banc). The Fifth District takes the position that where, as here, the insured loses the appeal but there will be a new trial, the insured is not entitled to any appellate attorney's fees for the appeal which the insured has lost. See Nu-Best, 810 So. 2d at

515; see also Philip J. Padovano, Florida Appellate Practice

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