Florida Auto. Dealers Industry Ben. Trust v. Small, 90-3129

Citation592 So.2d 1179
Decision Date15 January 1992
Docket NumberNo. 90-3129,90-3129
PartiesFLORIDA AUTOMOBILE DEALERS INDUSTRY BENEFIT TRUST, Appellant, v. Roosevelt N. SMALL, Appellee. 592 So.2d 1179, 17 Fla. L. Week. D277
CourtCourt of Appeal of Florida (US)

ERVIN, Judge.

Appellant's motion for rehearing is denied; our opinion of August 12, 1991 is, however, withdrawn and the following opinion substituted therefor.

Appellant, Florida Automobile Dealers Industry Benefit Trust (FADIBT), appeals an order of the trial court awarding prevailing-party attorney's fees to appellee, Roosevelt N. Small, who prevailed on his claim that FADIBT wrongfully refused to pay his hospital and medical expenses following an accident. FADIBT contends that the attorney's-fee statutes of Chapter 627, Florida Statutes, do not apply to it because it is a self-insurer. We affirm.

FADIBT contends that it is a multiple-employer welfare arrangement (MEWA), 1 established, pursuant to Sections 624.436 through 624.446, Florida Statutes (1989), by a group of automobile dealerships in accordance with the federal Employee Retirement Income Security Act. The issue at trial was whether FADIBT, a self-insurer, is subject to the attorney's fee provisions of Sections 627.428 and 627.6698, Florida Statutes (1989), which refer to insurers rather than self-insurers. After an evidentiary hearing, the trial court entered a judgment in favor of Small, awarding him attorney's fees and costs, and FADIBT filed a notice of appeal. Six days later, the trial court entered an order that was consistent with the prior final judgment, except that it specified that Small was entitled to attorney's fees pursuant to section 627.6698.

We first point out that our review of this case has been impeded by appellee's failure to file an answer brief, an omission that placed an undue burden on this court. Title & Trust Co. of Fla. v. Salameh, 407 So.2d 1035, 1035-36 (Fla. 1st DCA 1981).

Nevertheless, we conclude that attorney's fees were properly awarded pursuant to section 627.6698, which provides:

Upon the rendition of a judgment by any of the courts of this state against an insurer and in favor of any resident of the state who is one of a group of persons insured under a master group health insurance policy executed by the insurer and covering residents of this state, whether issued or delivered inside or outside this state, the trial court or, in the event of an appeal in which the insured prevails, the appellate court shall award the insured a reasonable attorney's fee....

FADIBT claims that the definition of "insurer" in Section 624.03, Florida Statutes (1989), 2 does not include the MEWA in the case at bar. We acknowledge that there are cases in which courts have taken this position. See, e.g., Florida Auto. Dealers Self-Insurers Fund v. Plantation AMC/Jeep, Inc., 566 So.2d 558 (Fla. 4th DCA 1990) (section 627.428 is inapplicable to a pooled self-insurance fund, because section 627.428(1) applies to insurance contracts, and a pooled self-insurer agreement is not an insurance contract, nor is a self-insured employer under the Workers' Compensation Law an "insurer" under the insurance code); Government Employees Ins. Co. v. Wilder, 546 So.2d 12, 13 (Fla. 3d DCA) (an individual self-insurer is not, for most purposes, an "insurer" under section 624.03), review denied, 554 So.2d 1168 (Fla.1989); Zinke-Smith, Inc. v. Florida Ins. Guar. Ass'n, 304 So.2d 507 (Fla. 4th DCA 1974) (an employer that establishes a self-insurance plan is not necessarily converted thereby into an "insurer," as defined under section 624.03), cert. denied, 315 So.2d 469 (Fla.1975). None of these cases, however, involves a construction of section 627.6698.

Without deciding whether section 627.428 applies to self-insurers, we conclude that section 627.6698 does do so, pursuant to the definitional provision in Section 627.652, Florida Statutes (1989), which states in part:

As used in this part:

* * * * * *

(2)(c) The term "insurer" includes any person or governmental unit providing a plan of self-insurance.

The term "this part" refers to Part VII of Chapter 627, dealing with group, blanket, and franchise health insurance policies. Section 627.6698 is located in Part VII. 3 We thus affirm the trial court's order of attorney's fees pursuant to section 627.6698.

Although we affirm, we consider it helpful to address an issue which was extensively argued in appellant's motion for rehearing: Whether an award of fees pursuant to section 627.6698 against FADIBT is preempted by federal law pertaining to Employee Retirement Income Security Act (ERISA) plans. 4 We agree with FADIBT that if the record before us established that its plan complied with ERISA, applicable federal law would preclude the assessment of the attorney's fee permitted by section 627.6698.

In order for us to adequately analyze the preemption issue, several federal statutes require discussion. It is provided in 29 U.S.C.S. Sec. 1144(a) (Law.Co-op.1990) that any state law which "relates" to employee benefit plans is preempted by ERISA. However, 29 U.S.C.S. Sec. 1144(b)(2)(A), the savings clause, provides that state laws which "regulate insurance" are not preempted. Nevertheless, 29 U.S.C.S. Sec. 1144(b)(2)(B), the "deemer clause," provides that any state law regulating insurance cannot deem an employee benefit plan to be an insurance company or "other insurer." Pilot Life Ins. Co. v. Dedeaux 481 U.S. 41, 45, 107 S.Ct. 1549, 1552, 95 L.Ed.2d 39, 46 (1987). In addition, 29 U.S.C.S. Sec. 1144(b)(6)(A)(ii) relates to MEWAs and provides that MEWAs that are not fully insured are subject to the laws of any state that regulate insurance to the extent that such laws are not inconsistent with any other provisions of ERISA.

FADIBT asserts that it is self-insured rather than fully insured, and therefore the above provision applies to its plan. In other words, the provisions of section 627.6698 are inconsistent with the deemer clause of 29 U.S.C.S. Sec. 1144(b)(2)(B), in that it is provided therein that no employee-benefit plan described in 29 U.S.C.S. Sec. 1003(a) may be deemed "to be an insurance company or other insurer ... for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies." (Emphasis added.) Because FADIBT claims that its plan is in compliance with ERISA, FADIBT consequently could not be deemed an "insurer" subject to the attorney-fee provision of section 627.6698. See Metropolitan Life Ins. Co. v. Whaland, 119 N.H. 894, 410 A.2d 635, 640 (1979) (The deemer clause "manifests Congress' decision to provide a safeguard to prevent a state from labeling a benefit plan as 'an insurance company or other insurer ... or engaged in the business of insurance' so as to allow the state to apply to the plan as such its insurance laws.").

FADIBT points out that section 627.6698 may also be preempted under 29 U.S.C.S. Sec. 1144(b)(6)(A)(ii) because the Florida provision is inconsistent with the ERISA attorney-fee provision. Section 627.6698 provides a mandatory award of attorney's fees to a prevailing party in an action by a resident of the state who is insured under a group health-insurance policy against an insurer. The ERISA Act, however, contains the following discretionary attorney-fee provision:

In any action under this subchapter ... by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney's fee and costs of action to either party.

29 U.S.C.S. Sec. 1132(g)(1) (Law.Co-op.1990).

Section 1132(g) is part of an overall civil-enforcement plan provided in ERISA. In Pilot Life Insurance Co., the United States Supreme Court, in concluding that a plaintiff's common-law action in Mississippi for tortious breach of contract and breach of fiduciary duty was preempted by the civil-enforcement provisions of section 1132, stated:

Congress clearly expressed an intent that the civil enforcement provisions of ERISA Sec. 502(a) [Sec. 1132(a) ] be the exclusive vehicle for actions by ERISA-plan participants and beneficiaries asserting improper processing of a claim for benefits, and that varying state causes of action for claims within the scope of Sec. 502(a) would pose an obstacle to the purposes and objectives of Congress.

Pilot Life Ins. Co., 481 U.S. at 52, 107 S.Ct. at 1555, 95 L.Ed.2d at 50-51 (emphasis added).

Following Pilot Life, two state appellate courts have specifically ruled that state statutes authorizing the assessment of attorney's fees against insurers of ERISA plans were preempted by federal law. See Cramer v. Association Life Ins. Co., 569 So.2d 533 (La.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1391, 113 L.Ed.2d 447 (1991) (holding that the clear language of the United States Supreme Court in Pilot Life required the conclusion that its state's mandatory attorney's-fee law was preempted by the discretionary fee provision in ERISA's civil enforcement statute); Manuel v. Connecticut Gen. Life Ins. Co., No. 90-C-02928, 1991 W.L. 33671 (N.D.Ill.1991) (holding that an Illinois attorney-fee provision was preempted by 29 U.S.C.S. Sec. 1132(g), and that "to allow a corresponding state law claim would undermine the policy choices made by Congress in drafting that section").

Accordingly, we agree with appellant's contention that the states are preempted by federal law from applying inconsistent state statutes imposing attorney's fees upon the insurers of MEWAs which comply with the provisions of ERISA. The difficulty with appellant's argument is that the record does not establish that its plan is in fact an ERISA plan. The only references in the non-supplemented record pertaining to ERISA are in a copy of the summary plan...

To continue reading

Request your trial
12 cases
  • Talbott v. American Isuzu Motors, Inc., 2D04-3680.
    • United States
    • Court of Appeal of Florida (US)
    • August 2, 2006
    ...Income Security Act (ERISA), 29 U.S.C. §§ 1001-1461. This court cited as authority Florida Automobile Dealers Industry Benefit Trust v. Small, 592 So.2d 1179, 1182-83 (Fla. 1st DCA 1992) (on motion for rehearing), which recognized that Florida's mandatory provision was inconsistent with the......
  • Boca Burger, Inc. v. Forum
    • United States
    • United States State Supreme Court of Florida
    • September 29, 2005
    ...Risk Mgmt. Servs., Inc. v. Av-Med Managed Care, Inc., 697 So.2d 158, 160 (Fla. 2d DCA 1997); Fla. Auto. Dealers Indus. Benefit Trust v. Small, 592 So.2d 1179, 1183 (Fla. 1st DCA 1992). Lack of subject matter jurisdiction may be properly asserted in a motion to dismiss. See Fla. R. Civ. P. 1......
  • Sheffield v. Superior Ins. Co.
    • United States
    • Court of Appeal of Florida (US)
    • June 30, 1999
    ...an appellate court should affirm, where the evidence supports the trial court's decision. See Florida Auto. Dealers Indus. Benefit Trust v. Small, 592 So.2d 1179, 1180 (Fla. 1st DCA 1992). "Where a trial court reaches the correct decision even if for the wrong reason, the decision will be a......
  • Boca Burger, Inc. v. Forum, Case No. SC01-1830 (FL 7/7/2005)
    • United States
    • United States State Supreme Court of Florida
    • July 7, 2005
    ...Risk Mgmt. Servs., Inc. v. Av-Med Managed Care, Inc., 697 So. 2d 158, 160 (Fla. 2d DCA 1997); Fla. Auto. Dealers Indus. Benefit Trust v. Small, 592 So. 2d 1179, 1183 (Fla. 1st DCA 1992). Lack of subject matter jurisdiction may be properly asserted in a motion to dismiss. See Fla. R. Civ. P.......
  • Request a trial to view additional results
1 books & journal articles
  • Pop quiz: why is fundamental error like pornography?
    • United States
    • Florida Bar Journal Vol. 76 No. 10, November - November 2002
    • November 1, 2002
    ...(19) See Zuliana de Aviacion v. Herrera, 763 So. 2d 499 (Fla. 3d D.C.A. 2000); Florida Auto. Dealers Indus. Benefit Trust v. Small, 592 So. 2d 1179 (Fla. 1st D.C.A. (20) See Fisher v. Dep't of Health & Rehabilitative Servs., 674 So. 2d 207 (Fla. 5th D.C.A. 1996). (21) Vestal, 731 So. 2d......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT