Opinion
No. 91-2600.
February 4, 1992.
Appeal from the Circuit Court, Appellate Division, Dade County, Gisela Cardonne, Henry G. Ferro, and Amy Dean, JJ.
Diane H. Tutt, Fort Lauderdale, for petitioner.
Marc L. Goldman, Miami, Carlos Lidsky, Hialeah, for respondents.
Before BASKIN, JORGENSON and LEVY, JJ.
Fortune Insurance Company petitions for a writ of common law certiorari seeking review of an order from the appellate division of the circuit court awarding attorney's fees. For the following reasons, we grant the petition and quash the order under review.
In 1988, Cardoso, Palomino, and their husbands sued Fortune in Dade County Court for uninsured motorist benefits. The claimants voluntarily dismissed their action after discovering that they had not met their deductibles. Fortune requested and was awarded attorney's fees pursuant to section 57.105, Florida Statutes (1987). Upon the claimants' appeal to the appellate division of the circuit court, the award of fees was reversed. The claimants then moved for, and were awarded, appellate attorney's fees pursuant to section 627.428, Florida Statutes (1989).
The appellate division departed from the essential requirements of the law in awarding such fees. Section 627.428 provides that appellate attorney's fees are to be awarded "in the event of an appeal in which the insured or beneficiary prevails . . . as fees or compensation for the insured's or beneficiary's attorney prosecuting the suit in which the recovery is had." (Emphasis added.) No recovery was had in this case. In the trial court, the claimants took a voluntary dismissal; in the appellate division of the circuit court the claimants successfully, but narrowly, avoided the imposition of fees under section 57.105. Accordingly, they were not entitled to an award of fees under section 627.428 as the appeal was not related to the recovery of insurance benefits.
Petition granted; order quashed.