United Automobile Insurance Company v. Gibson M.D., P.A.—(C.J. Klingensmith, 4DCA; 2/15/23).
This is an appeal about attorney’s fees. This was a PIP (personal injury protection) case. The injured insured assigned benefits to his doctor and the urgent care center that treated him. Though this case involves an assignment of benefits, the holding would apply even if it were just the plaintiff suing in his own right.
There was a dispute about the benefits owed, and the Insurer eventually filed a confession of judgment for $21.31 and $7 in interest, and the Insurer conceded fee entitlement.
The doctor sought attorney’s fees under section 627.428, Fla. Stat, and also based on the confession of judgment, but the doctor did not allege any unreasonable conduct by the Insurer.
The trial court awarded over $10,000 in fees. Around two of the attorney hours (from a total of around 24 hours) were for pre-suit attorney time. The appeal only involved those two pre-suit hours.
The DCA held that presuit attorney time cannot be awarded unless those fees are the result of an insurer’s unreasonable conduct. No such conduct was alleged, and no unreasonable conduct appears in the record. Wrongful denial of a claim, on its own, cannot support a finding of unreasonable conduct. There is no discussion in the case about the effect of a stipulation to fee entitlement. Presuit attorney fees were reversed and the case was remanded. The rest of the fee award was affirmed.