Florida/Georgia Personal Injury & Workers Compensation

...We have previously found certification a helpful device when confronted with the question of how broadly to construe a Florida statute providing for the recovery of attorneys’ fees from insurers. See Modder v. American Nat’l Life Insurance Co., 86 F.3d 1070 (1996) (addressing Fla. Stat. § 627.6698’s authorization of fee recovery by persons insured under group health insurance policy)....

...ANTEX counterclaimed, asserting that the Modders improperly misrepresented facts to ANTEX in the application for insurance. The Modders prevailed after a jury trial and ANTEX reinstated their insurance coverage. After receiving the favorable judgments, the Modders filed a motion for attorney's fees under section 627.6698, Florida Statutes (1995)....

...The Eleventh Circuit found that the parties had raised issues of first impression under Florida law and that no Florida court has addressed the application, if any, of the exclusionary provision of section 627.6515, Florida Statutes (1995), to the attorney's fee provision of section 627.6698, Florida Statutes (1995). The Eleventh Circuit certified for our review the following question: DOES THE EXCLUSIONARY PROVISION OF SECTION 627.6515(2), FLORIDA STATUTES, EXEMPT AN INSURER FROM ATTORNEY'S FEES LIABILITY UNDER SECTION 627.6698, FLORIDA STATUTES, AND IF SO, HAS THE INSURER IN THIS CASE PROVIDED THE FACTUAL PREDICATE NECESSARY TO COME *332 WITHIN THE EXCLUSIONARY PROVISION? Modder v....

...ANALYSIS The two-part question certified presents this Court with a straightforward question of statutory construction and application. At the outset, we must determine whether the exclusionary provision of section 627.6515(2) exempts an insurer from attorney's fees liability under section 627.6698....

...the policy providing your coverage are governed primarily by the law of a state other than Florida"; and (c) The policy provides the benefits specified in ss. 627.419, 627.6574, 627.6575, 627.6579, 627.6613, 627.667, and 627.6675. (Emphasis added.) Section 627.6698, also within part VII of chapter 627 and entitled "Attorney's fees," reads as follows: (1) Upon the rendition of a judgment by any of the courts of this state against an insurer and in favor of any resident of this state who is one o...

...(2) When so awarded, the attorney's fee shall be included in the judgment or decree rendered in the case. (Emphasis added.) The Modders argue that the exclusionary provision of section 627.6515(2), Florida Statutes (1995), does not exempt ANTEX from the all-inclusive language of the attorney's fees provision under section 627.6698, Florida Statutes (1995). The Modders contend that because the Florida Legislature enacted the attorney's fees provision after the exclusionary provision, the legislature could not have contemplated that section 627.6515(2) would exempt an insurer from fee liability under section 627.6698....

...ements of the exclusionary provision. ANTEX argues that the NBA was formed for purposes other than providing insurance and comprises an association group under section 627.6515(2), thereby qualifying for exemption from attorney's fee liability under section 627.6698....

...at 219 (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 1144, 137 So. 157 (1931)). We conclude the plain language of these statutes indicates that the exclusionary provision of section 627.6515(2) exempts insurers from liability for attorney's fees under section 627.6698. As ANTEX points out, both sections 627.6515(2) and 627.6698 are found in part VII of chapter 627 of the Florida Statutes....

...n sets forth three requirements that the policy in question must meet. The plain meaning of this statute is that none of the provisions in part VII of chapter 627 apply to certain types of group health insurance policies issued out of state. Because section 627.6698 is within part VII, it is among the statutory sections that are not applicable to those "exempt" policies. While the text of section 627.6698 is not selflimiting, its application is clearly limited by the terms of section 627.6515(2). Moreover, contrary to the Modders' assertion that section 627.6515(2) exempts certain policies only from the "compliance" provisions of part VII and not the penalty portion, section 627.6515(2) does not contain an exception for section 627.6698 attorney fee liability that would make it applicable to the otherwise exempt policies....

...We are left to construe the statute as it is plainly written. Thus, we answer the first part of the Eleventh Circuit's certified question in the affirmative and hold that the clear language of section 627.6515(2) establishes that the attorney's fee penalty of section 627.6698, like the rest of part VII, is not applicable to policies described in section 627.6515(2)....

...Statutes (1989), by a group of automobile dealerships in accordance with the federal Employee Retirement Income Security Act. The issue at trial was whether FADIBT, a self-insurer, is subject to the attorney's fee provisions of Sections 627.428 and 627.6698, Florida Statutes (1989), which refer to insurers rather than self-insurers....

...g him attorney's fees and costs, and FADIBT filed a notice of appeal. Six days later, the trial court entered an order that was consistent with the prior final judgment, except that it specified that Small was entitled to attorney's fees pursuant to section 627.6698....

...ilure to file an answer brief, an omission that placed an undue burden on this court. Title & Trust Co. of Fla. v. Salameh, 407 So.2d 1035, 1035-36 (Fla. 1st DCA 1981). Nevertheless, we conclude that attorney's fees were properly awarded pursuant to section 627.6698, which provides: Upon the rendition of a judgment by any of the courts of this state against an insurer and in favor of any resident of the state who is one of a group of persons insured under a master group health insurance policy e...

...4th DCA 1974) (an employer that establishes a self-insurance plan is not necessarily converted thereby into an "insurer," as defined under section 624.03), cert. denied, 315 So.2d 469 (Fla. 1975). None of these cases, however, involves a construction of section 627.6698. Without deciding whether section 627.428 applies to self-insurers, we conclude that section 627.6698 does do so, pursuant to the definitional provision in Section 627.652, Florida Statutes (1989), which states in part: As used in this part: * * * * * * (2)(c) The term "insurer" includes any person or governmental unit providing a plan of self-insurance. The term "this part" refers to Part VII of Chapter 627, dealing with group, blanket, and franchise health insurance policies. Section 627.6698 is located in Part VII. [3] We thus affirm the trial court's order of attorney's fees pursuant to section 627.6698. Although we affirm, we consider it helpful to address an issue which was extensively argued in appellant's motion for rehearing: Whether an award of fees pursuant to section 627.6698 against FADIBT is preempted by federal law pertaining to Employee Retirement Income Security Act (ERISA) plans. [4] We agree with FADIBT that if the record before us established that its plan complied with ERISA, applicable federal law would preclude the assessment of the attorney's fee permitted by section 627.6698....

...nsurance to the extent that such laws are not inconsistent with any other provisions of ERISA. FADIBT asserts that it is self-insured rather than fully insured, and therefore the above provision applies to its plan. In other words, the provisions of section 627.6698 are inconsistent with the deemer clause of 29 U.S.C.S....

..., insurance contracts, banks, trust companies, or investment companies." (Emphasis added.) Because FADIBT claims that its plan is in compliance with ERISA, FADIBT consequently could not be deemed an "insurer" subject to the attorney-fee provision of section 627.6698....

...de a safeguard to prevent a state from labeling a benefit plan as `an insurance company or other insurer ... or engaged in the business of insurance' so as to allow the state to apply to the plan as such its insurance laws."). FADIBT points out that section 627.6698 may also be preempted under 29 U.S.C.S. § 1144(b)(6)(A)(ii) because the Florida provision is inconsistent with the ERISA attorney-fee provision. Section 627.6698 provides a mandatory award of attorney's fees to a prevailing party in an action by a resident of the state who is insured under a group health-insurance policy against an insurer....

...Consequently, because it clearly appears that certain provisions of Part VII are applicable to MEWAs, we are unable to glean any expression of legislative intent to exclude MEWAs from consideration as insurers responsible for paying a prevailing party's attorney's fees, pursuant to the provisions of section 627.6698....

...motion for judgment on the pleadings, and the parties thereafter settled the case between themselves, leaving only the attorney-fee issue for resolution by the trial court. The statement of proceedings indicates only that FADIBT argued that neither section 627.6698 nor the brochure authorized an award of attorney's fees to the plaintiff.

...FACTS Appellants, Arthur Modder and Gail Modder, contend the exclusionary provision of section 627.6515(2), Florida Statutes does not exempt appellee, American National Life Insurance Company of Texas (Antex), from the all-inclusive language of the attorney’s fees provision under section 627.6698, Florida Statutes. Appellants contend that because the legislature enacted the attorney’s fees provision after the exclusionary provision, the legislature could not have contemplated that section 627.6515(2) would exempt an insurer from fee liability under section 627.6698....

...rements of the exclusionary provision. Antex further contends that the NBA was formed for purposes other than providing insurance and comprises an association group under section 627.6515(2), thereby qualifying for exemption from fee liability under section 627.6698....

...Antex counterclaimed asserting that appellants improperly misrepresented facts to Antex in the application for insurance. Ultimately, the appellants prevailed and Antex reinstated their insurance coverage. After receiving the favorable judgments, appellants filed a motion for attorney’s fees under section 627.6698, and Antex opposed the motion arguing the exclusionary provision of section 627.6515(2) precluded attorney’s fees against Antex....

...DISCUSSION We find that the parties in this appeal have raised issues of first impression under Florida law. No Florida court has addressed the application, if any, of the exclusionary provision of section 627.6515, Florida Statutes to the attorney’s provision of section 627.6698, Florida Statutes....

...highest court in Florida. Accordingly, we certify the following question to the Supreme Court of Florida: DOES THE EXCLUSIONARY PROVISION OF SECTION 627.6515(2), FLORIDA STATUTES EXEMPT AN INSURER FROM ATTORNEY’S FEES LIABILITY UNDER SECTION *1072 627.6698, FLORIDA STATUTES, AND IF SO, HAS THE INSURER IN THIS CASE PROVIDED THE FACTUAL PREDICATE NECESSARY TO COME WITHIN THE EXCLUSIONARY PROVISION....

...al Life Insurance Company of Texas (Antex), from the all-inclusive language of the attorney's * Honorable Harlington Wood, Jr., Senior U.S. Circuit Judge for the Seventh Circuit, sitting by designation. fees provision under section 627.6698, Florida Statutes. Appellants contend that because the legislature enacted the attorney's fees provision after the exclusionary provision, the legislature could not have contemplated that section 627.6515(2) would exempt an insurer from fee liability under section 627.6698. Alternatively, appellants contend that Antex failed to establish that the National and Business Association (NBA), came within the exclusionary provision of section 627.6515(2). Antex contends that it issued and delivered...

...exclusionary provision. Antex further contends that the NBA was formed for purposes other than providing insurance and comprises an association group under section 627.6515(2), thereby qualifying for exemption from fee liability under section 627.6698....

...misrepresented facts to Antex in the application for insurance. Ultimately, the appellants prevailed and Antex reinstated their insurance coverage. After receiving the favorable judgments, appellants filed a motion for attorney's fees under section 627.6698, and Antex opposed the motion arguing the exclusionary provision of section 627.6515(2) precluded attorney's fees against Antex....

...We find that the parties in this appeal have raised issues of first impression under Florida law. No Florida court has addressed the application, if any, of the exclusionary provision of section 627.6515, Florida Statutes to the attorney's provision of section 627.6698, Florida Statutes....

...highest court in Florida. Accordingly, we certify the following question to the Supreme Court of Florida: DOES THE EXCLUSIONARY PROVISION OF SECTION 627.6515(2), FLORIDA STATUTES EXEMPT AN INSURER FROM ATTORNEY'S FEES LIABILITY UNDER SECTION 627.6698, FLORIDA STATUTES, AND IF SO, HAS THE INSURER IN THIS CASE PROVIDED THE FACTUAL PREDICATE NECESSARY TO COME WITHIN THE EXCLUSIONARY PROVISION. The phrasing of this question is not intended to limit the Supreme Court in considering the issue presented or the manner in which it gives its answer....

...dispositive but unsettled question of Florida law. Accordingly, we certified the following question to the Supreme Court of Florida: Does the exclusionary provision of Section 627.6515(2), Florida Statutes, exempt an insurer from liability under Section 627.6698, Florida Statutes, and if so, has the insurer in this case provided the factual predicate necessary to come within the exclusionary provision? Modder, 86 F.3d at 1071-72. The Supreme Court of Florida has now answered...

...question in the affirmative stating: [W]e answer the first part of the Eleventh Circuit's certified question in the affirmative and hold that the clear language of section 627.6515(2) establishes that the attorney's fee penalty of section 627.6698, like the rest of part VII, is not applicable to policies described in section 627.6515(2). * Honorable Harlington Wood, Jr., Senior U.S....