Monday, June 15, 2009

Insured Not Entitled to Fees for Certiorari Petition

In Grider-Garcia v. State Farm Mutual Automobile (5D08-3793), the Petitioner sought certiorari review of an order denying leave to amend the complaint and an order denying a motion to strike discovery requests. The Fifth District denied the petition for certiorari "because any error would be fully remediable on plenary appeal."

After disposing of the issue on appeal in the first paragraph, the Fifth District then addressed whether "Petitioner is entitled to a provisional award of fees for this proceeding tied to the ultimate determination whether she is the prevailing party in the suit against her insurer pursuant to section 627.428, Florida Statutes."

"Given the courts' narrow interpretation of the language of section 627.428, it appears that this Court is not authorized to grant fees to an insured who does not succeed in his or her application for certiorari. Indeed, it is doubtful that an insured would even be entitled to fees for a certiorari proceeding in which it prevails based on the interpretation of the statute that appellate courts are authorized to award fees only for an appeal that the insured wins."


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