USAA Cas. Ins. Co. v. Romm, 97-1809

• Decision Date: 25 March 1998
• Docket Number: No. 97-1809,97-1809
• Citation: 712 So.2d 405
• Court: Florida District Court of Appeals
• Parties: 23 Fla. L. Weekly D804 USAA CASUALTY INSURANCE COMPANY, Appellant, v. Michael R. ROMM, Richard Keller, M.D., P.A., et al., Appellees.

Page 405

712 So.2d 405

23 Fla. L. Weekly D804

USAA CASUALTY INSURANCE COMPANY, Appellant, v. Michael R. ROMM, Richard Keller, M.D., P.A., et al., Appellees.

No. 97-1809.

District Court of Appeal of Florida,

Fourth District.

March 25, 1998.

Rehearing and Certification Denied

April 22, 1998.

Robert C. Gobelman and Jack B. Cooper of Gobelman and Love, Jacksonville, for appellant.

Henry Laffer of Law Offices of Henry Laffer, Sunrise, for Appellee Richard Keller, M.D., P.A.

DELL, Judge.

USAA Casualty Insurance Company ("USAA") appeals the trial court's award of attorney's fees to Dr. Richard Keller ("Keller"). USAA contends that the trial court erred by awarding fees pursuant to section 627.428, Florida Statutes (1993), because Keller did not accept an assignment of benefits, and pursuant to section 627.736(5), Florida Statutes, because Keller was not a prevailing party in arbitration. We reverse the award of attorney's fees.

Michael R. Romm ("Romm") was injured in an automobile accident. He filed suit claiming that USAA failed to pay Keller's medical bills in accord with his personal injury protection coverage. USAA filed an answer and a third party complaint against Keller ¹ seeking arbitration to determine the reasonableness of Keller's medical fees. USAA alleged that Keller accepted an assignment of benefits from Romm. Keller answered and filed affirmative defenses stating that he did not take an assignment of benefits from Romm, as provided in Chapter 627, Florida Statutes. Thereafter, USAA paid Keller's bill for services rendered to Romm.

Keller filed a motion for attorney's fees claiming that although he did not accept an assignment of benefits, he received a partial or implied assignment. USAA moved to strike arguing that Keller only denied accepting an assignment of benefits to avoid arbitration. The trial court awarded $4,000 in fees to Keller.

USAA contends that the trial court erred by awarding attorney's fees pursuant to section 627.428, Florida Statutes, because Keller did not accept an assignment of benefits. Section 627.428(1) provides:

Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or the beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured's or beneficiary's attorney prosecuting the suit in which the recovery is had.

§ 627.428(1), Fla. Stat. "[A]n award of attorney's fees under Section 627.428(1) is available only to the contracting insured, the insured's estate, specifically named policy beneficiaries, and third parties who claim policy coverage by assignment from the insured." Roberts v. Carter, 350 So.2d 78, 79 (Fla.1977)(footnotes omitted); see also Safeco Ins. Co. of America v. Albriza, 365 So.2d 804, 806 (Fla. 4th DCA 1978).

An assignment is defined as "a transfer or setting over of property or of some right or interest therein, from one person to another. It is the act by which one person transfers to another, or causes to vest in another, his right of property or interest therein." 4 Fla. Jur.2d, Assignments Sec. 1 (1978).

State Farm Fire and Cas. Co. v. Ray, 556 So.2d 811, 812 (Fla. 5th DCA 1990).

Here, Keller specifically stated that he did not accept an assignment of benefits from Romm. Although he accepted payment directly from USAA, there was no assignment to Keller of Romm's right to receive payments. The trial court erred by awarding him attorney's fees pursuant to section 627.428, Florida Statutes.

USAA also contends that the trial court erred by awarding attorney's fees pursuant to section 627.736(5), Florida Statutes, because neither party...