                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                   FILED
                                                           U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                No. 09-15726
                                                                AUGUST 17, 2010
                            Non-Argument Calendar
                                                                  JOHN LEY
                          ________________________                 CLERK

                  D.C. Docket No. 08-00069-CV-ORL-18-KRS

STEVEN G. MILES, M.D.,

                                                         Plaintiff-Appellant,

                                      versus

PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY,

                                                         Defendant-Appellee.
                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________
                               (August 17, 2010)

Before BLACK, PRYOR and COX, Circuit Judges.

PER CURIAM:


                              I. BACKGROUND

      Steven G. Miles, M.D., was a practicing interventional radiologist. In early

2006, Miles was diagnosed with a disease that affected his ability to work. In June
2006, he submitted a claim for total disability benefits to his occupational disability

insurer, Provident Life and Accident Insurance Company (“Provident”). Provident

acknowledged Miles’s claim and undertook an investigation of the claim that lasted

about six months. During the investigation, Miles responded to Provident’s requests

for information and provided claim documentation. On December 1, 2006, Provident

denied Miles’s claim for total disability benefits. When Miles disputed the denial of

his claim, Provident undertook a review of the decision. Despite communications

from Provident to Miles in both May 2007 and July 2007 saying that the company

would conclude the review process within thirty days, Provident made no decision

on its review of Miles’s claim in 2007.

      At the end of November 2007, one year after his claim was denied, Miles filed

suit against Provident in a Florida state court, seeking total disability benefits under

the policy and attorney’s fees pursuant to section 627.428, Florida Statutes.

Provident removed the case to federal court. Provident’s answer to the complaint

denied (among other things) that Miles was totally disabled and denied that he was

entitled to attorney’s fees. On February 8, 2008, while the lawsuit was still pending,

Provident sent Miles a letter reversing its earlier denial of his claim and

acknowledging that Miles was totally disabled under the policy.             Thereafter,

Provident paid Miles total disability benefits under the policy.

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      Miles moved for summary judgment on his attorney’s fees claim. Provident

opposed Miles’s motion and filed a cross-motion for summary judgment. The district

court denied Miles’s motion and granted Provident’s motion, finding that Miles was

not entitled to attorney’s fees because Provident’s initial denial of his claim was not

wrongful. Miles appeals.

     II. ISSUES ON APPEAL AND CONTENTIONS OF THE PARTIES

      We review the district court’s decision that Miles is not entitled to attorney’s

fees. Miles argues that the district court erred because, where an insured brings suit

to challenge an insurer’s denial of his claim and then the insurance company pays the

claim, the insured is entitled to attorney’s fees under section 627.428(1), Florida

Statutes. Miles also argues that the district court erred in relying on inadmissible

documents submitted by Provident in support of its motion.

      Provident defends the district court’s ruling and argues, as it did in the district

court, that an insurer is not liable for an insured’s attorney’s fees unless it denied the

insured’s claim unreasonably or in bad faith. Provident argues that the documents

attached to its motion were admissible and that, in any event, the district court did not

rely on those documents.




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                          III. STANDARD OF REVIEW

      This court reviews a district court’s grant of summary judgment by applying

the same legal standards used by the district court. See, e.g., Hilburn v. Murata Elecs.

N. Am., Inc., 181 F.3d 1220, 1225 (11th Cir. 1999).            Summary judgment is

appropriate where “‘there is no genuine issue as to any material fact and the moving

party is entitled to a judgment as a matter of law.’” Wooden v. Bd. of Regents of the

Univ. Sys. of Ga., 247 F.3d 1262, 1271 (11th Cir. 2001) (quoting Fed. R. Civ. P.

56(c)).

                                 IV. DISCUSSION

      The Florida statute at issue in this appeal states:

      Upon the rendition of a judgment or decree by any of the courts of this
      state against an insurer and in favor of any named or omnibus insured
      or the named beneficiary under a policy or contract executed by the
      insurer, the trial court or, in the event of an appeal in which the insured
      or beneficiary prevails, the appellate court shall adjudge or decree
      against the insurer and in favor of the insured or beneficiary a
      reasonable sum as fees or compensation for the insured’s or
      beneficiary’s attorney prosecuting the suit in which the recovery is had.

Fla. Stat. § 627.428(1). It is well settled in Florida law that no actual judgment or

decree is necessary if, when an insured must sue an insurance company on a disputed

claim, the insurance company subsequently agrees to pay the claim. Wollard v.

Lloyd’s & Cos. of Lloyd’s, 439 So.2d 217, 218 (Fla. 1983). “[T]he payment of the



                                           4
claim is, indeed, the functional equivalent of a confession of judgment or a verdict in

favor of the insured.” Id. Under those circumstances, the insured is entitled to

attorney’s fees pursuant to the statute. Id. at 218-19.

       Provident argues that the district court did not err in entering judgment for

Provident because, in order for an insured to be entitled to attorney’s fees, he must

show that the insurance company’s denial of the claim was unreasonable or in bad

faith. Provident bases this argument on language in Florida appellate court opinions

saying that attorney’s fees are recoverable only when the insurer has “wrongfully”

withheld payment on the claim. See Appellee’s Br. at 28-29. The plain language of

the statute, however, imposes no requirement that an insured demonstrate that the

insurer’s denial of the claim was unreasonable or in bad faith. And, Provident cites

no case law that clearly states these things must be proven. We also disagree with

Provident’s interpretation of the word “wrongful” in the state court opinions. As we

understand the cases, an insurance company “wrongfully” denies the claim if it does

so incorrectly, meaning in spite of its duty to do otherwise under the insurance

contract. See Cincinnati Ins. Co. v. Palmer, 297 So.2d 96, 98 (Fla. App. 1974) (“The

fact that the insurer’s refusal to pay the amount owed by it under the terms of the

policy was in good faith and on reasonable grounds does not relieve the insurer from

liability for payment of attorney’s fees where it is subsequently found liable on the

                                          5
policy.” (citation omitted)); see also Wollard, 439 So.2d at 219 and n.2 (stating that,

even if it were the case that the insured had been dilatory in its prosecution of the

claim and the insurance company had been the impetus for settlement, the insured

would be entitled to reasonable attorney’s fees if the legal services were necessary).

      An award of attorney’s fees to an insured may be warranted under Florida law

even if an insurer did not act in an unreasonable manner in denying a claim. But, an

insured must show that he or she needed to resort to litigation to receive benefits.

Gov’t Employees Ins. Co. v. Battaglia, 503 So.2d 358, 360 (Fla. 5th DCA 1987)

(“The purpose of section 627.428 is to penalize a carrier for wrongfully causing its

insured to resort to litigation to resolve a conflict when it was reasonably within the

carrier’s power to do so.”) (citing Crotts v. Bankers & Shippers Ins. Co. of New York,

476 So.2d 1357, 1358 (Fla. 2d DCA 1985); Vermont Mutual Ins. Co. v. Bolding, 381

So.2d 320 (Fla. 5th DCA 1980)). In their summary judgment papers, the parties

presented arguments and evidence relevant to the issue of whether litigation was

necessary for Miles to receive benefits. The district court made no findings on that

issue. Instead, the court based its decisions on the lack of evidence showing a

genuine issue of material fact that Provident acted in an unreasonable manner.

Because there is no requirement for such a showing, we vacate the district court’s




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decision and judgment.1 We remand the case for further proceedings , during which

the district court should decide whether the legal services were necessary to the

favorable resolution of Miles’s previously-denied claim. See Wollard, 439 So. 2d at

219, n.2.

                                      V. CONCLUSION

       For the foregoing reasons, we vacate the judgment for fees and remand the case

to the district court.2

       VACATED AND REMANDED.




       1
        In light of our decision, we do not consider whether the district court improperly relied on
the evidence submitted by Provident.
       2
        Miles’s motion for this court to grant him attorney’s fees is denied. However, if the district
court determines that Miles’s lawsuit was necessary, it should award fees and expenses for the
handling of his appeal and determine the amount to be awarded.

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