Rodriguez v. Travelers Ins. Co., 78-688

• Decision Date: 06 February 1979
• Docket Number: No. 78-688,78-688
• Citation: 367 So.2d 687
• Parties: Luisa RODRIGUEZ, Appellant, v. TRAVELERS INSURANCE COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 687

367 So.2d 687

Luisa RODRIGUEZ, Appellant, v. TRAVELERS INSURANCE COMPANY, Appellee.

No. 78-688.

District Court of Appeal of Florida, Third District.

Feb. 6, 1979.

Rehearing Denied March 9, 1979.

Stabinski, Funt, Levine & Vega, Miami, for appellant.

Adams & Ward and Amy Shield Levine, Miami, for appellee.

Before KEHOE and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

SCHWARTZ, Judge.

The plaintiff-appellant, Luisa Rodriguez, was severely injured in an automobile accident caused by the negligence of a man named Gomez who had $15,000.00 in liability insurance coverage with the South Carolina Insurance Company. Mrs. Rodriguez was herself insured under a Travelers Insurance Company policy which provided her with $5,000.00 in personal injury protection and $1,000.00 in medical payments benefits. After Travelers paid her the entire amount of each coverage, the plaintiff reached a settlement agreement with the third-party tortfeasor's insurer, South Carolina, for the full $15,000.00 limits of its policy.

Mrs. Rodriguez then filed in an action pending only against Gomez and South Carolina a "motion for equitable distribution," ¹ directed against Travelers, in which she contended that the "value" of the case was far more than $15,000.00, and sought an order determining the dollar amount of reimbursement to which her carrier was equitably entitled for the benefits it had paid under both the p. i. p. and medical payments provisions. After a hearing at which Travelers appeared and in which it was revealed that it had demanded $1,000.00 or 20% Of the amount paid on its p. i. p. claim, the trial judge awarded $150.00, or 3% Of that amount in equitable distribution. Neither party seeks review of that determination. However, the court denied outright the request for equitable distribution of the medical payments benefits, and also, apparently based upon its finding that Travelers had not negotiated the p. i p. equitable distribution controversy in "bad faith," denied the plaintiff's application for attorney's fees for the services involved in that proceeding. Mrs. Rodriguez challenges both of these rulings on this appeal. We affirm the former, and reverse the latter.

The trial court was correct in rejecting the plaintiff's attempt to equitably distribute the amounts paid under the medical payments coverage. According to the terms of the Travelers policy, which was in evidence below, ² the insurance company, upon payment of these benefits, became subrogated to Mrs. Rodriguez's rights to recover those amounts against the third-party tort-feasor. Since this provision is valid and enforceable, DeCespedes v. Prudence Mutual Casualty Co. of Chicago, Ill., 202 So.2d 561 (Fla.1967), aff'g., 193 So.2d 224 (Fla. 3d DCA 1966), and there is no statutory provision to the contrary, ³ we hold that its existence precludes the plaintiff's attempt, in effect, to reduce the amount paid based upon "equitable principles."

We think this result is required by our decision in Eckert v. Government Employees Ins. Co., 334 So.2d 119 (Fla. 3d DCA 1976). ⁴ The court there cited the DeCespedes case, supra, which involved medical pay coverage, in support of the conclusion that equitable distribution was not applicable, in the absence of statute, to payments made by an uninsured motorist carrier. At 334 So.2d 122, the court held:

"We note that the First District Court of Appeal has held that in such a case where the recovery is more than sufficient to reimburse the insurer-subrogee for the amount paid by it under the uninsured motorists coverage, the subrogee is not entitled to full reimbursement (less expenses of recovery) but is restricted to recovery of a portion thereof to be determined upon the basis of equitable distribution.¹ We are shown no statutory provision limiting recovery by the subrogee to a portion of its outlay on the basis of equitable distribution in such circumstance. We recognize that a statute which had provided for full recovery by the insurer in such an instance (§ 627.0851(4) Fla.Stat., F.S.A.) is no longer in effect and was not applicable in this case. However, it would appear that the insurer may so recover under the common law doctrine of subrogation,² and we so hold ..." ⁵

1 Central National Insurance Group v. Hotte, Fla.App.1975, 312 So.2d 235; State Farm Mutual Ins. Co. v. Gordon, Fla.App.1975, 319 So.2d 36.

2 International Sales-Rentals Leasing Co. v. Nearhoof, Fla.1972, 263 So.2d 569; DeCespedes v. Prudence Mutual Casualty Co. of Chicago, Ill., Fla.App.1967, 193 So.2d 224 (aff'd on cert., Fla., 202 So.2d 561).

See also International Sales-Rentals Leasing Co. v. Nearhoof, 263 So.2d 569, 571 (Fla.1972); Public Health Trust of Dade County v. O'Neal, 348 So.2d 377 (Fla. 3d DCA 1977); Dade County v. Perez, 237 So.2d 781 (Fla. 3d DCA 1970); Dade County v. Bodie, 237 So.2d 553 (Fla. 3d DCA 1970). ⁶

As to the appellant's second point, we conclude that when, as here, the trial judge awards the p. i. p. carrier less than what it has demanded in equitable distribution, the insured is entitled to an attorney's fee under § 627.428(1), Fla.Stat. (1975). Accordingly we reverse that portion of the final order below which denied the plaintiff such an award. Essentially, we agree with the holding in Reliance Ins. Co. v. Kilby, 336 So.2d 629 (Fla. 4th DCA 1976) that fees should be awarded when the insured is successful in a judicial battle with his own p. i. p. carrier over the amount of equitable distribution to which the company is entitled under § 627.736(8), Fla.Stat. (1975). See also Catches v. Government Employees Ins. Co., 318 So.2d 552 (Fla. 1st DCA 1974), cert. denied, 333 So.2d 41 (1976); White v. Reserve Ins. Co., 299 So.2d 661 (Fla. 1st DCA 1974), cert. denied, 308 So.2d 113 (1975). The terms of the insurance attorney's fee statute, § 627.428(1), Fla.Stat. (1975), which requires only a "judgment (the final order entered below) . . . against an insurer and in favor of an insured . . . under a policy . . . executed by the insurer . . ." seem to us, as they did to the Fourth District in Kilby, clearly to apply to this situation.

We disagree, however, with the statements in both the Kilby and Catches cases, supra, that fees may be awarded under the statute only "when the insurer refuses or fails to negotiate in good faith." Reliance Ins. Co. v. Kilby, supra, at 336 So.2d 631; Catches v. Government Employees Ins. Co., supra, at 318 So.2d 553. ⁷ In our view, these statements are completely contrary to an unbroken line of Florida cases which hold that fees must be awarded when the statutory prerequisites are met, regardless of whether the insurance company has acted in bad faith or not. For example, in one of the earliest cases interpreting the present statute's original predecessor, New York Life Ins. Co. v. Lecks, 122 Fla. 127, 165 So. 50, 55 (1936), our supreme court held:

"A reasonable attorney fee to be adjudged in this case is indicated in the original opinion herein. Its recovery is a statutory right of the beneficiary, and the principles relating to the recovery of unjust penalties announced in Atlantic Coast Line R. Co. v. Wilson & Toomer Fertilizer Co., 89 Fla. 224, 104 So. 593, and Atlantic Coast Line R. Co. v. Connell & Schultz, 111 Fla. 572, 149 So. 596, 151 So. 381, do not supersede the affirmative statutory right of the beneficiary to recover reasonable attorney fees, even though payment under the policy was contested in good faith and upon reasonable grounds."

Accord, e. g., Pacific Mutual Life Ins. Co. of California v. McCaskill, 126 Fla. 82, 170 So. 579 (1936); Cincinnati Ins. Co. v. Palmer, 297 So.2d 96 (Fla. 4th DCA 1974); Salter v. National Indemnity Co., 160 So.2d 147 (Fla. 1st DCA 1964).

Indeed the Kilby case itself ably summarizes the practical reasons for the statutory provision for attorney's fees as they apply to this very situation:

". . . as illustrated by the facts in the instant case, the amount of PIP benefits is often relatively small. With PIP benefits of $778.86 to be apportioned, it would make no economic sense for the insured to seek judicial apportionment if the insured must pay his own attorney fee. The fees could very well equal or surpass the award of benefits. After all, the legal work of demonstrating the value of the claim falls on the insured. So, if an insured is not to receive an award of attorney fees, he or she is left to the mercy and dictates of the insurer in the...