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Rodriguez v. Government Employees Ins. Co.

Florida Court of Appeal, Fourth District

December 21, 2011

Alberto RODRIGUEZ, Petitioner,
v.
GOVERNMENT EMPLOYEES INSURANCE COMPANY, Respondent.

Rehearing Denied Feb. 14, 2012.

Page 1043

Aylin Morales and Mariano R. Gonzalez of Law Offices of Gonzalez & Associates, P.A., Miramar, for petitioner.

Frank A. Zacherl, Temple Fett Kearns, and Krista S. Kovalcin of Shutts & Bowen, L.L.P., Fort Lauderdale, for respondent.

HAZOURI, J.

Alberto Rodriguez has filed a second-tier petition for writ of certiorari from an opinion rendered by the circuit court [1] sitting in its appellate capacity. In his petition Rodriguez argued that the circuit court erred in affirming the summary judgment entered in the county court in favor of Government Employees Insurance Company (GEICO). He also asserted the county court erred in failing to award him attorneys' fees pursuant to section 627.428, Florida Statutes (2009), and further erred in awarding attorneys' fees to GEICO based upon a proposal for settlement pursuant to section 768.79, Florida Statutes (2009). We find no error in the circuit court's affirming the county court's rulings on the motion for summary judgment in favor of GEICO. The county court judge concluded in granting GEICO's motion for summary judgment that there were no genuine issues of material fact supporting Rodriguez's claims against GEICO. In affirming the summary judgment the circuit court did not depart from the essential requirements of law resulting in a miscarriage of justice, which is a requirement for our review. See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086 (Fla.2010).

On the claims for attorneys' fees, the circuit court affirmed the lower court's determination of attorneys' fees based upon GEICO's being the prevailing party, the standard set forth in Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807 (Fla.1992). GEICO was awarded $168,386.39. In so ruling, the circuit court departed from the essential requirements of law resulting in a miscarriage of justice.

This case began following Rodriguez's involvement in a car accident. At the time of the accident he was the owner and holder of a policy issued to him by GEICO. GEICO examined the vehicle and assigned a value to the repairs. Rodriguez elected to have his car repaired at a specific shop, and GEICO issued a payment for the repairs consistent with the estimate. Rodriguez sought additional funds alleging the initial estimate did not include repairs for all of the damages sustained as a result of the accident. GEICO supplemented its estimate and issued another check for the remaining repairs. Subsequently, Rodriguez filed suit against GEICO seeking damages under the policy for negligent repairs made by the body shop, and alleging that GEICO was liable for repairs that were necessary due to the accident, but not contained in either the initial or supplemental estimates.

GEICO moved successfully for summary judgment on the claim for negligent repairs. However, the trial court denied the portion of the motion directed at GEICO's failure to pay for all of the repairs resulting from the accident.

Thereafter, GEICO filed an amended answer and affirmative defenses, a counterclaim and a third party complaint. Among its various affirmative defenses GEICO alleged that Rodriguez was not the owner of the vehicle, and that he affirmatively misrepresented such ownership to GEICO to procure the recovery of the cost to repair the vehicle from GEICO. GEICO alleged that Rodriguez's conduct was

Page 1044

negligent and fraudulent. Therefore, he was barred from recovery.

In its counterclaim GEICO alleged fraud, conspiracy to commit fraud, and unjust enrichment, and sought refund of the monies paid to Rodriguez for the approved costs of repair.

The parties participated in arbitration ordered by the county court. The arbitrator found a material misrepresentation by Rodriguez associated with an inaccurate assertion of the vehicle's ownership that barred his recovery. However, the arbitrator found that the misrepresentation did not rise to the level of common law fraud to support GEICO's claims and therefore Rodriguez did not have to refund payments made by GEICO. Also, the unjust enrichment claims failed because GEICO retained Rodriguez's premiums.

Renewed summary judgment motions followed resulting in a final judgment in GEICO's favor on the complaint, and in Rodriguez's favor on the counterclaim. GEICO moved for fees, based upon its $100.00 proposal for settlement, coupled with section 768.79, Florida Statutes. The county court awarded GEICO fees and costs in the amount of ...


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