SC06-283 – Brass & Singer, P.A., Etc. v. United Automobile Insurance Company

State: Florida

Docket No: SC06-283

Case Date: 11/09/2006

Preview:Supreme Court of Florida
____________ No. SC06-283 ____________ BRASS & SINGER, P.A., etc., Petitioner, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent. [November 9, 2006] BELL, J. We have for review the decision of the Third District Court of Appeal in Brass & Singer, P.A. v. United Automobile Insurance Co., 919 So. 2d 473 (Fla. 3d DCA 2005), which the Third District certified to be in direct conflict with the decision of the Fourth District Court of Appeal in Gedeon v. State Farm Mutual Automobile Insurance Co., 805 So. 2d 119 (Fla. 4th DCA 2002). The conflict issue is a pure question of law: whether the language of section 627.428, Florida Statutes (2004), authorizes an appellate court to conditionally award appellate attorney's fees to an insured that loses on appeal on the basis that the insured may

be the prevailing party at the close of litigation. 1 The Third District held that the plain meaning of section 627.428 does not authorize an appellate court to grant conditional appellate attorney's fees to an insured or, in this case, the insured's assignee who lost on appeal. Brass & Singer, P.A., 919 So. 2d at 475. 2 In so holding, the Third District endorsed the Fifth District's decision in Nationwide Mutual Insurance Co. v. Nu-Best Diagnostic Labs, Inc., 810 So. 2d 514 (Fla. 5th DCA 2002). 919 So. 2d at 475. In Gedeon, the Fourth District held that a circuit court acting in its appellate capacity erred in refusing to conditionally grant appellate attorney's fees pursuant to section 627.428 to an insured who lost on appeal. 805 So. 2d at 119. The Fourth District reasoned that the circuit court failed to follow the law set forth in Aksomitas v. Maharaj, 771 So. 2d 541 (Fla. 4th DCA 2000), which requires that "an appellate court should ordinarily grant a motion for prevailing party attorney's fees contingent on that party ultimately prevailing in the case below." Gedeon, 805 So. 2d at 120 (citing Aksomitas, 771 So. 2d at 543-44). 3

1. We have jurisdiction to resolve the certified conflict. See art. V,

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