PROGRESSIVE V. MIAMI DADE HEALTH
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2005 PROGRESSIVE EXPRESS INSURANCE COMPANY, ** ** Petitioner, ** CASE NO. 3D05-1343 vs. ** MIAMI DADE HEALTH & REHAB SERVICES, as assignee of IDALIA CEDRES, ** ** LOWER TRIBUNAL NO. 02-585 AP 01-2256 SP 24 Respondent. ** Opinion filed November 16, 2005. A Writ of Certiorari to the Circuit Court for Miami-Dade County, Appellate Division, Jeffrey Rosinek, Jose M. Rodriguez, and Dennis J. Murphy, Judges. Anania, Bandklayder, Blackwell, Baumgarten, Torricella & Stein and Douglas H. Stein, for petitioner. Stephens Lynn Klein La Cava Hoffman & Puya, P.A., and Marlene S. Reiss, for respondent. Before WELLS, SHEPHERD, and CORTIÃ AS, JJ. SHEPHERD, J. Petitioner, Progressive Express Insurance Company, seeks certiorari review of an order of the circuit court, appellate division, which granted Respondent, Miami Dade Health & Rehab Services (Miami Dade HRS) motion for appellate attorney fees pursuant to section 627.428(1) of the Florida Statutes though Miami Dade HRS did not prevail on the appeal. even We grant the petition but certify direct conflict. We find that this case is factually indistinguishable from our recent decision in Brass & Singer P.A. v. United Auto. Ins. Co., No. 3D05-951 (Fla. 3d DCA Sept. 21, 2005). Like Brass & Singer, this case originated as a county court lawsuit over personal injury protection (PIP) benefits. The insured, Idalia Cedres, assigned her benefits to the respondent, Miami Dade HRS. Miami Dade HRS then sued Cedres PIP carrier, Progressive. Ultimately, the county court granted summary judgment to Miami Dade HRS, and Progressive appealed. On appeal, Miami Dade HRS filed a conditional motion for attorney fees pursuant to section 627.428(1) of the Florida Statutes (2004) in which it asked the circuit court, appellate division, to enter an order awarding it appellate fees in the event that it ultimately prevailed on the merits of the case. The circuit court, appellate division, reversed the judgment of the county court, finding that there 2 were genuine issues of material fact which precluded the granting of summary judgment. Although Miami Dade HRS was the unsuccessful the Miami Dade party HRS on its appeal, appellate court attorney nevertheless fees pursuant awarded to its motion. We have recently held on facts nearly identical to those before us here that an insured is not entitled to appellate attorney fees under section 627.428(1) when it loses an appeal, even if the merits. insured See Brass ultimately & prevails Singer, at (adopting a the trial on reasoning the of Nationwide Mut. Ins. Co. v. Nu-Best Diagnostic Labs, Inc., 810 So. 2d 514 (Fla. 5th DCA 2002)). party on appeal in this case. Miami Dade HRS was the losing Accordingly, Miami Dade HRS is not entitled to attorney fees under section 627.428(1), whatever the ultimate outcome of the case may be. and quash the order below. In so We grant the petition doing, we certify direct conflict with Gedeon v. State Farm Auto. Ins. Co., 805 So. 2d 119, 120 (Fla. 4th DCA 2002) and Askomitas v. Maharaj, 771 So. 2d 541, 543-45 (Fla. 4th DCA 2000). Petition granted; order quashed; direct conflict certified. 3
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