STAND-UP MRI
v.
PROGRESSIVE AMERICAN INSURANCE COMPANY
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This is an order on motion for rehearing and clarification regarding an insurance coverage dispute. The appellate court denied Progressive's motion for rehearing but granted its motion for clarification to condition the award of appellate attorney's fees to Stand-Up MRI on Stand-Up's ultimate prevailing in the trial court action on remand.
The court denied Progressive's motion for rehearing but granted its motion for clarification. The appellate attorney's fees awarded to Stand-Up are conditioned on Stand-Up ultimately prevailing in the trial court action on remand, consistent with Florida Statutes sections 627.428 and 627.736(8).
[1] An award of appellate attorney's fees may be conditioned on the prevailing party ultimately succeeding in the trial court action on remand.
[2] Statutory provisions governing attorney's fees in insurance cases may require that an award be conditioned on the insured ultimately prevailing in the underlying litigati…
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Join FLexlaw to unlock all legal intelligence“Progressive seeks rehearing of this Court's opinion reversing the trial court's order entering final judgment against Appellant, The Stand-Up MRI of Orlando, P.A., a/a/o Llewellyn Baytops ('Stand-Up') that was pursuant to the trial court's order granting Progressive's motion for summary judgment.”
Describes the underlying dispute and Progressive's request for rehearing of the reversal
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceStand-Up MRI of Orlando, P.A. appealed the trial court's order granting Progressive American Insurance Company's motion for summary judgment and enter…
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CASE NO.: CVA1 09-43 a/a/o LLEWELLYN BAYTOPS,
Lower Case No.: 2006-SC-9469
Appellant, v. PROGRESSIVE AMERICAN INSURANCE COMPANY,
Appellee. __________________________________________/
ORDER DENYING IN PART AND GRANTING IN PART MOTION FOR REHEARING AND CLARIFICATION
THIS MATTER came before this Court for consideration of Appellee, Progressive American Insurance Company’s (“Progressive”) Motion for Rehearing and Clarification filed on July 11, 2012. This Court having reviewed the Motion, Response, supplemental authority, the Final Order Reversing Trial Court entered on June 18, 2012, the court file, and being otherwise fully advised in the premises, finds as follows: Progressive seeks rehearing of this Court’s opinion reversing the trial court’s order entering final judgment against Appellant, The Stand-Up MRI of Orlando, P.A., a/a/o Llewellyn Baytops (“Stand-Up”) that was pursuant to the trial court’s order granting Progressive’s motion for summary judgment. In the alternative, Progressive requests that this Court clarify or amend the portion of this Court’s order granting an award of appellate attorney’s fees to Stand-Up to include language that the award be conditioned on Stand-Up ultimately prevailing in the trial court action on remand as required under sections 627.428 and 627.736(8), Florida Statutes. See Nationwide Mutual Insurance Co. v. Nu-Best Diagnostic Labs, Inc., 810 So. 2d 514, 515 (Fla. 5th DCA 2002); Allstate Insurance Co. v. De La Fe, 647 So. 2d 965, 966 (Fla. 3d DCA 1994). It is hereby ORDERED AND ADJUDGED that Appellee, Progressive’s motion for rehearing as to this Court’s opinion reversing the trial court’s order is DENIED. Progressive’s motion for clarification as to the award of appellate attorney’s fees to Appellant, Stand-Up is GRANTED. Accordingly, Stand-Up’s motion, “Appellant’s Second Amended Motion for Appellate Fees” filed April 30, 2010 is granted as to the attorneys’ fees, conditioned on Stand-Up ultimately prevailing in the trial court action. All other portions of the Final Order Reversing Trial Court entered on June 18, 2012 shall remain in effect. DONE AND ORDERED in Chambers, at Orlando, Orange County, Florida on this 16th day of August, 2012. __/S/_________________________ A. THOMAS MIHOK
Circuit Judge
_/S/__________________________
__/S/_________________________ FREDERICK J. LAUTEN
TIM SHEA Circuit Judge
Circuit Judge
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been furnished via U.S. mail to: Kevin B. Weiss, Esquire, Weiss Legal Group, P.A., 698 North Maitland Avenue, Maitland, Florida 32751; Betsy E. Gallagher, Esquire and Michael C. Clarke, Esquire, Kubicki Draper, 201 North Franklin Street, Suite 2550, Tampa, Florida 33602; and Michael Tierney, Esquire, 918 Beard Avenue, Winter Park, Florida 32789 on the 16th day of August, 2012.
__/S/_______________________
Judicial Assistant
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Authorities Cited
- Allstate Ins. Co. v. DE LA FE, 647 So. 2d 965 (Fla. 3d DCA 1994)
- Nationwide Mut. Ins. Co. v. Nu-Best Diagnostic Labs, Inc., 810 So. 2d 514 (Fla. 5th DCA 2002)