UNITED AUTOMOBILE INSURANCE COMPANY v. XUNDA A. GIBSON, M.D., P.A. d/b/a PREMIER URGENT CARE CENTER a/a/o JEAN BAPTISTE OCHELIN

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

UNITED AUTOMOBILE INSURANCE COMPANY,
Appellant,

v.

XUNDA A. GIBSON, M.D., P.A. d/b/a PREMIER URGENT CARE
CENTER a/a/o JEAN BAPTISTE OCHELIN,
Appellee.

No. 4D22-1186

[February 15, 2023]

Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; Steven P. DeLuca, Judge; L.T. Case No. CONO19014213.

Michael J. Neimand, House Counsel of United Automobile Insurance
Company, Miami, for appellant.

David B. Pakula of David B. Pakula P.A., Pembroke Pines, Abraham
Ovadia of Ovadia Law Group, Boca Raton, and Mac S. Phillips of Phillips
Tadros, P.A., Fort Lauderdale, for appellee.

KLINGENSMITH, C.J.

United Automobile Insurance Company (“Insurer”) appeals a final
judgment awarding attorney’s fees and costs to Xunda Gibson, M.D.
(“Doctor”). At issue is whether the trial court abused its discretion in
awarding pre-suit attorney’s fees for time spent prior to the underlying suit
being filed. We hold this was error and reverse.

The instant case stems from a lawsuit regarding an assignment of
benefits on a PIP case. Insurer filed a confession of judgment in the
amount of $21.31 in benefits and $7.00 in interest and conceded Doctor’s
entitlement to attorney’s fees. Doctor then moved for attorney’s fees based
on section 627.428, Florida Statutes (2019), as well as Insurer’s confession
of judgment. Doctor’s motion, however, did not request fees based on
Insurer’s conduct nor did it mention any unreasonable conduct allegedly
committed by Insurer.
 The trial court granted Doctor’s motion for attorney’s fees in the amount
of $10,328.80 with interest. Out of the 34.8 hours sought, the court found
24.7 hours to be compensable, including pre-suit fees totaling 2.10 hours
spent prior to the filing of the underlying suit. Although Doctor’s expert
opined on the reasonableness of Insurer’s pre-suit conduct, the court’s
final order did not mention whether the pre-suit hours awarded were
based in any way on Insurer’s conduct.

“A trial judge’s award of attorney’s fees and costs is reviewed under an
abuse of discretion standard of review.” Campbell v. Campbell, 46 So. 3d
1221, 1223 (Fla. 4th DCA 2010). Courts have held that pre-litigation
attorney’s fees can be compensable only when the accrued fees are the
result of an insurer’s unreasonable conduct. See U.S. Fid. and Guar. Co. v.
Rosado, 606 So. 2d 628, 629 (Fla. 3d DCA 1992) (finding no entitlement
to attorney’s fees for pre-suit work absent a finding of unreasonable
conduct).

Doctor’s motion for attorney’s fees was not founded upon Insurer’s
purported unreasonable conduct, nor does the trial court’s order granting
fees discuss whether Insurer acted unreasonably. Further, the record on
appeal does not reflect unreasonable conduct by Insurer that could have
supported an award of pre-suit fees. Cf. Alt. Dev., Inc. v. St. Lucie Club &
Apartment Homes Condo. Ass’n, 608 So. 2d 822, 828 (Fla. 4th DCA 1992)
(affirming a fee award because the record on appeal “contain[ed]
competent, substantial evidence” supporting the award and the facts were
“set forth in great detail in the final judgment”). While Insurer’s failure to
pay the claim detailed in the demand letter was admittedly wrong, actions
of this type are common in many instances where an insurance company
is named in a PIP lawsuit, and, standing alone, does not constitute
unreasonable conduct.

Therefore, we reverse the lower court’s award of pre-suit attorney’s fees
and remand for entry of a judgment consistent with this opinion. We
affirm on all other issues raised without comment.

Affirmed in part, reversed in part, and remanded.

GERBER and ARTAU, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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