Associates MD a/a/o Joel Gonzalez v. GEICO General Insurance Co., Broward County Case No: COINX-23-056777The plaintiff filed a complaint for declaratory relief and attorney fees pursuant to Fla. Stat. 627.428 against the defendant for the alleged underpayment of CPT code 99204 in relation to treatment rendered to Joel Gonzalez for injuries allegedly sustained in an April 12, 2023, motor vehicle accident. In the complaint, the plaintiff alleged that the defendant reimbursed CPT code 99204 at a “seemingly arbitrary amount” that did not appear to align with the appropriate amount allowed under the Medicare fee schedule. In response, the defendant filed a motion to dismiss and motion to strike, arguing that the underlying policy had an effective date from April 6, 2023, through October 6, 2023, thus triggering the provisions of HB 837, which was signed into law by Governor DeSantis on March 24, 2023. In support of its argument, the defendant pointed to Section 29 of HB 837, which dictates that the bill “applies to an insurance contract issued or renewed after the effective date of this act.” The defendant also pointed to the fact that the act repealed Fla. Stat. 627.428 and created Fla. Stat.

On March 24, 2023, Florida Governor Ron DeSantis signed House Bill 837 into law making a major impact on Florida’s tort landscape. It is likely that this new Tort Reform Act will have a significant impact on the future of Florida’s Motor Vehicle No-Fault Law, also known as the “No-Fault Law,” or “Personal Injury Protection (PIP).” Generally, under the PIP statute coded under Fla. Stat. §627.736, every owner of a motor-vehicle in Florida is required to carry $10,000.00 in PIP coverage. See Id. at (1). The benefits are to be paid for each injured person for medical services without regard for who was at fault in causing the accident. Id.; See also Fla. Stat. §627.731.Right to Attorney’s FeesMost notably, as it pertains to the No-Fault Law, House Bill 837 removed the provision pertaining to Fl. Stat. §627.428, which provided for the right to an entitlement of attorney’s fees for plaintiff(s) who are successful in their breach of contract claim against insurance carriers in PIP suits.Specifically, the Bill changes the No-Fault Statute by amending Subsection (8) of Fl. Stat. §627.736, to read as follows:627.736 Required personal injury protection benefits; exclusions; priority; claims.— (8) APPLICABILITY OF PROVISION REGULATING ATTORNEY FEES.— With respect to any dispute under the provisions of ss. 627.730- 627.7405 between the insured and the insurer, or between an assignee of an insured’s rights and the insurer, the provisions of s. 768.79 ss. 627.428 and 768.79 apply, except as provided in subsections (10) and (15), and except that any attorney fees recovered must: (a) Comply with prevailing professional standards; (b) Not overstate or inflate the number of hours reasonably necessary for a case of comparable skill or complexity; and (c) Represent legal services that are reasonable and nec

In this article, we will focus on the statutory changes that affect the handling and litigation of property insurance claims.No Attorney’s Fees for AssigneesThe Legislature amended Florida Statutes Sections 627.428 and 626.9373 (surplus lines), which provide one-way attorney’s fee shifting to insureds that prevail in coverage litigation. The potential for recovery of attorney’s fees incentivized attorneys and contractors to litigate claims as a matter of course.

[3] See Tillis v. Liverpool & London & Globe Insurance Company, 35 So. 171 (1903) (rejecting an insurance company's argument that the 1893 law providing that an insured may recover attorney fees in actions against an insurance company to enforce a policy violates due process and equal protection).[4] Fla. Stat § 627.428 (2021). Fla. Stat § 626.9373 (2021) is nearly identical to § 627.428 but regulates surplus lines insurers; SB 76 adds the same language to both attorney fees statutes.

that the pursuit payment made by Citizens in response to the Notice of Intent did not amount to a confession of judgment.The court explained that although settlement of a lawsuit is, under certain circumstances, seen as a confession of judgment akin to a verdict in favor of the insured, the confession-of-judgment doctrine applies only when an insured must sue for benefits. The court found that the plaintiffs did not have to sue to recover benefits and resolve the dispute. Instead, Citizens’ pre-suit payment in response to the plaintiffs’ Notice of Intent exceeded the plaintiffs’ demand. Additionally, Citizens’ pre-suit settlement was not a confession of judgment—that is, the pre-suit settlement did not render the plaintiffs the prevailing parties—and did not trigger entitlement to attorney’s fees.This case, indicating potential exposure to pre-suit fees after an insurer refuses pre-suit settlement but later concedes, appears to apply only to those cases operating under a rendition of section 627.428, Florida Statutes, which permits recovery of fees. That statute provided that: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 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. In a suit arising under a residential or commercial property insurance policy not brought by an assignee, the amount of reasonable attorney fees shall be awarded only as provided in s. 57.105 or s. 627.70152, as applicable.The 2023 amendments to Chapter 627 eliminated the availability of fees for insureds in first-party property insurance cases. However, in pre-amendment cases, the

However, unlike litigation, each party shall otherwise bear his/her/its own attorneys’ fees and costs5. The endorsement provides:YOU HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE YOUR, OR ANY ADDITIONAL INSUREDS’, OMNIBUS INSUREDS’, OTHER PERSON MAKING A CLAIM UNDER THE POLICY’S, OR ASSIGNEE’S STATUTORY RIGHTS UNDER FLORIDA LAW, SECTION 627.428, FLORIDA STATUTES, AND SECTIONS 627.70152, 627.7152, FLORIDA STATUTES, TO RECEIVE A REASONABLE SUM AS FEES OR COMPENSATION FOR YOUR ATTORNEY PROSECUTING YOUR CLAIM AGAINST THE INSURER. THIS WAIVER IS A MATERIAL INDUCEMENT FOR EACH PARTY TO ENTER INTO THIS AGREEMENT AND TO PERFORM THEREUNDER.The parties agree that the award of attorneys’ fees and costs under section x of Binding Arbitration Agreement do not include payment for attorney time and costs incurred during the Arbitration proceeding which includes the initial filing through the issuance of the Arbitrator’s final written decision, and specifically acknowledge and agree that attorneys’ fees otherwise awardable under 627.428 are waived for anything other than those incurred in an enforcement action of the Arbitration award.You voluntarily acknowledge and fully understand that in waiving your and or any additional insured’s, omnibus insured’s, other person making a claim under the policy, or an assignee’s statutory rights under Florida law, sectio

The Florida Legislature clearly hopes to curb expensive litigation with SB76, which alters several insurance-related statutes.Attorney’s Fees: Since 2019, Florida Statute Section 627.428 has awarded attorney’s fees to anyone who obtained a judgment against an insurance carrier for breach of an insurance policy. This meant that if an insured was awarded a $1 judgment at trial, the carrier would then be liable for hundreds of thousands of dollars in attorney’s fees and costs.

hing more than an unauthenticated, incomplete computer screen image from an unknown source and did not identify when it was created or by whom. The invoice was checked on the computer screen, but the plaintiff had not provided a copy of the invoice. The screen image also referenced an e-mail that had previously been sent, but the plaintiff did not provide a copy of the e-mail. Accordingly, the court found that the plaintiff had not established that State Farm ever had to pay the plaintiff for an insured loss under the insured’s policy prior to the filing of the lawsuit. In opposition to plaintiff’s motion, State Farm argued that they had only first learned of the repair when they received the plaintiff’s complaint and that they had been unable to locate an e-mail or any other communication from the plaintiff prior to suit being filed. Accordingly, the court ruled that there was a genuine issue of material fact and denied plaintiff’s motion. As part of its analysis, the court looked at Fla. Stat. § 627.428 and relevant case law related to this statute. The court held that an insured would only be entitled to fees if they presented an opportunity for the insurer to pay the claim as opposed to being the one who won the race to the courthouse. In citing People’s Tr. Ins. Co. v. Polanco, Fla. 4th DCA Jan. 11, 2023, the court held that the first sign of a disagreement between the plaintiff and the defendant in the instant case was at the filing of the complaint. Because the plaintiff could not demonstrate that it needed to bring suit in order to obtain the payment under the policy, the court ruled that a fee recovery was not warranted. The court also highlighted that, had the plaintiff provided a pre-suit notice of the invoice, it may have received payment without the need to bring suit. This case demonstrates that courts are not likely to grant fees when the primary purpose of the lawsuit appears to be nothing more than a mechanism to obtain attorney fees. I believe this order is significan

ten-day Notice of Intent to Initiate Litigation to the insurance carrier prior to filing suit.Creates a Strong Presumption in Favor of the Lodestar Fee: The law establishes a new standard for the award of attorney fee multiplier in property insurance lawsuits and creates a strong presumption that the Lodestar Fee, amount of fees and costs without a multiplier, is sufficient and reasonable, which may only be rebutted “in a rare and exceptional circumstance with evidence that competent counsel could not be retained in a reasonable manner.” This component significantly decreases the potential exposure many carriers face if they defend a case through trial as it reduces the likelihood that an award of attorney fees and costs to a Plaintiff might be doubled, or more.Prohibition from Assignment of Entitlement to Attorney FeesFlorida law has long awarded attorney attorney fees to insureds upon the rendition of a judgment in their favor against their homeowner’s insurance carrier pursuant to Fla. Stat. 627.428. Nevertheless, SB-2 adds subsection (4) to 627.428 which prohibits the transfer, assignment, or acquisition of the right to attorney fees under 627.428 to anyone who is not a named insured or named beneficiary.

As such, in addition to impacting vendors operating under an AOB, another significant aspect of this change is this prohibition appears to include post-loss purchasers of an insured property. The relevant sections are as follows:Florida Statute Section 627.428 is amended to add the following language:(4) In a suit arising under a residential or commercial property insurance policy, the right to attorney fees under this section may not be transferred to, assigned to, or acquired in any other manner by anyone other than a named or omnibus insured or a named beneficiary. *Identical language has been adopted for surplus lines’ carriers under § 626.9373(3)‍The “AOB Statute” - Florida Statute Section 627.7152 - has been amended to eliminate attorney fee recovery under that section stating, “attorney fees and costs may be recovered by an assignee only under s. 57.105.”