Court issues order striking plaintiff’s demand for attorney’s fees.
An allegation in the plaintiff’s complaint demanded a right to attorney’s fees under Fla. Stat. §§ 627.428, 627.9373 and/or 627.7152. Truck Insurance Exchange filed a motion to strike the plaintiff’s claim for attorney’s fees. Florida Statute § 627.7152 was amended on May 26, 2022, and one of those amendments specifically bars assignees (such as Swift Response) from entitlement to attorney’s fees, except pursuant to Florida Statute § 57.105. In this case, the assignment of benefits (AOB) was executed after May 26, 2022; on October 11, 2022. As such, the plaintiff had no right to demand attorney’s fees in a lawsuit, according to Truck Insurance.
The plaintiff attempted to argue that applying the amended statute would be unconstitutional under Menendez v. Progressive Express Inc. Co., 35 So. 3d. 873 (Fla. 2010) because there was an insurance policy in place prior to the date the statute was amended. The court rejected the plaintiff’s argument that Menendez should apply to this case. Instead, the court cited to the 3rd District Court of Appeal case Restoration Team v. S. Oak Ins. Co., 357 So. 3d 236 (Fla. 3rd DCA 2023), where the district court specifically held that Mendendez does not apply to assignment of benefits cases because the assignee does not have any rights until the assignment of benefits is signed.
Judge Woodward also noted that the Third District Court of Appeal found that application of Fla. Stat. § 627.7152 is not a retroactive application, so the Menendez analysis does not apply. Judge Woodward state, “...[I]t is prospective from the date of the signing of the AOB.”
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