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Understanding HB 837 and its Effects on Attorney Fees in Florida No Fault/PIP Cases

Paul Michael Gabe, Maria Santos and Daniel Freire | February 27, 2024

The enactment of House Bill 837 (HB 837) on March 24, 2023, by Governor Ron DeSantis has introduced notable changes to the landscape of attorney fees entitlement in Florida No Fault/PIP cases in Florida. This legislation repealed the previous "one-way" attorney fee provisions found in Section 627.428 of the Florida Statutes. Florida Statute 627.428 granted a Plaintiff the right to recover reasonable attorney fees from the insurer upon any recovery in a PIP lawsuit. While HB 837 eliminated Florida Statute 627.428, it did not completely extinguish the ability for a Plaintiff to recover attorney fees in a PIP lawsuit. The following avenues under HB 837 still provide the Plaintiff an opportunity to recover attorney fees in a PIP lawsuit on policies that incepted or renewed post 3/24/23:

If the Plaintiff files an Offer of Judgment / Proposal for Settlement pursuant to Florida Statute 768.79 and/or Florida Rules of Civil Procedure 1.442, and it is not accepted within 30 days, the Plaintiff may be able to recover attorney fees if the plaintiff recovers a judgment at least 25 percent greater than the offer. In that case, the Plaintiff shall be entitled to recover reasonable costs and attorney’s fees incurred from the date of the filing of the Offer of Judgment. 
If an insurer denied a claim in full, pursuant to HB 837, the Plaintiff can file a Declaratory Action to establish coverage. The Declaratory Action can only be filed by the named insured and not the medical provider or assignee. If the Plaintiff prevails on the Declaratory Action, they can recover reasonable attorney fees and costs.  Please note, HB 837 has provided an expedited process for handling these Declaratory Actions.
HB 837 did not eliminate the right to pursue sanctions under Florida Statute 57.105. Florida Statute 57.105 states in part, “upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.
(2) At any time in any civil proceeding or action in which the moving party proves by a preponderance of the evidence that any action taken by the opposing party, including, but not limited to, the filing of any pleading or part thereof, the assertion of or response to any discovery demand, the assertion of any claim or defense, or the response to any request by any other party, was taken primarily for the purpose of unreasonable delay, the court shall award damages to the moving party for its reasonable expenses incurred in obtaining the order.
Florida Statute 627.736 (h) allows the prevailing party to recover reasonable attorney fees and costs under the following circumstances:
(1) If a person has committed, by a material act or omission, insurance fraud relating to personal injury protection coverage under his or her policy, 
(2) If the fraud is admitted to in a sworn statement by the insured or established in a court of competent jurisdiction.

What should you do if you receive a lawsuit seeking attorney fees and costs as relief on a policy with an inception date post 3/23/23?
In post-HB 837 cases, Defense counsel must prioritize moving both for dismissal and to strike fee entitlement at the commencement of the suit. Plaintiff counsel will attempt to retain their fee entitlement any way they can, and we must zealously defend our clients' rights by ensuring that they do not pay unnecessary and statutorily non-compensable fees.  Further, once Plaintiff’s lose the easy avenue for attorney fee entitlement, they are often much more receptive to settlement and closing out the case. 
In Associates MD a/a/o Joel Gonzalez v. GEICO General Insurance Co., Broward County Case No: COINX-23-056777, “The plaintiff filed a PIP complaint for declaratory relief and attorney fees pursuant to Fla. Stat. 627.428 against the defendant for the alleged underpayment of CPT code 99204. The Defendant filed a Motion to Dismiss and Motion to Strike arguing that the policy had a post March 24, 2023, effective date, thus triggering the provisions of HB 837. The Defendant argued that  the plaintiff’s claim for attorney fees under Fla. Stat. 627.428 was a nullity as the statute did not exist at the time the underlying contract was entered into. The court agreed and issued an order granting the motion to strike and order that the plaintiff’s claim for attorney fees is stricken.” Source: County court ... HB 837, JD Supra   



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