PEARSON, DANIEL S., Judge.
The issue presented by this appeal is whether a beneficiary of a medical payment reimbursement plan established under the Employee Retirement Income Security Act (ERISA) who is compelled by contract to arbitrate her claim for medical expense benefits is entitled to recover her attorney's fees after prevailing in the arbitration proceedings.
Angela Clark was the beneficiary of a medical reimbursement plan established under ERISA by Consolidated Labor Union Trust (the Trust). Clark's $5,000 claim was denied by the Trust, and, pursuant to a contract provision calling for arbitration of such disputes, the matter was sent to arbitration. The arbitrators awarded Clark the entirety of her claim, and when the Trust refused to pay the award, Clark sued in the circuit court to have the award confirmed and to recover, inter alia, the fees for her attorney's services in the arbitration proceedings. The trial court confirmed the arbitration award and granted Clark's request for attorney's fees incurred in arbitration, the amount of such fees to be determined at a later hearing. The Trust appeals the grant of attorney's fees.
Section 1132(g)(1) of ERISA provides that "[i]n any action under this subchapter ... by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney's fee and costs of action to either party." 29 U.S.C. § 1132 (g)(1) (1982). The appellant Trust argues that an arbitration proceeding is not an "action" contemplated by the statute and that, therefore, an award of attorney's fees is wholly unauthorized. Clark says otherwise.
Although no court has heretofore specifically addressed the propriety of an award of attorney's fees under Section 1132(g)(1)
The Trust contends, however, that several Florida cases denying awards of attorney's fees incurred in arbitration proceedings, despite statutory authority to otherwise award attorney's fees, support its position that arbitration proceedings are not to be construed as actions under Section
Beach Resorts International v. Clarmac Marine Construction Co., 339 So.2d 689 (Fla. 2d DCA 1976), is of little comfort to the Trust. The Florida Arbitration Code, Section 682.11, Florida Statutes, has never provided for — indeed, has expressly excluded — the recovery of attorney's fees. Clarmac, a contractor, faced with an agreement mandating arbitration of disputes between it and the property owner, filed a claim of lien against the owner and sued to foreclose the lien under the Mechanic's Lien Statute, Section 713.29, Florida Statutes, which, unlike the Arbitration Code, authorizes the recovery of attorney's fees.
It is important to note, first, that Beach Resorts International did not decide that an arbitration proceeding is not an action, but instead decided that the plaintiff's action in court was merely to confirm an arbitration award (no attorney's fees awardable), not to enforce a mechanic's lien (attorney's fees awardable); and, second, that, consistent with our view in the present case, the court implied that had the defendant refused to abide by the judgment confirming the award, necessitating the imposition of a lien, then attorney's fees attributable to the arbitration could be awarded.
Following the lead of Beach Resorts, this court in Cuevas v. Potamkin Dodge, 455 So.2d 398 (Fla. 3d DCA 1984), refused to allow attorney's fees incurred in arbitration proceedings. In Cuevas, a dissatisfied car buyer sued the car dealer for fraud and violations of the Florida Deceptive and Unfair Trade Practices Act, Sections 501.201-.213, Florida Statutes (1981), requesting the attorney's fees authorized by the Act. Pursuant to the parties' sales contract, the matter went to arbitration where an award was made for the buyer. The buyer asked the court to confirm the award and for attorney's fees. The court held that the language of the Act, so clearly contemplating litigation in the court only, precluded an award of attorney's fees incurred in arbitration. Unlike ERISA Section 1132(g)(1), which we are here called upon to construe, the Unfair Trade Practices Act provides:
The Trust makes one further argument against the propriety of an award of attorney's fees. It says that by bringing an action to confirm the arbitration award, Clark has made the confirmation action, not her action under ERISA, the basis for recovery of her plan benefits. The argument is specious and proves too much. The nature of the cause is an action under ERISA regardless of the forum for dispute resolution. Moreover, since the court is always the appropriate forum to determine whether to award attorney's fees, Loxahatchee River Environmental Control District v. Guy Villa & Sons, Inc., 371 So.2d 111 (Fla. 4th DCA), cert. denied, 378 So.2d 346 (Fla. 1979), all actions to confirm arbitration awards — no matter what the underlying complaint — would be transformed into actions under the arbitration code for which no fees are authorized, a patently absurd result.
Finally, we address the Trust's argument that even if the trial court correctly decided to award attorney's fees to Clark, it was incumbent upon it to set forth its reasons for making such an award. While we believe this is an accurate statement of the law, see Evans v. Bexley, 750 F.2d 1498, 1500 (11th Cir.1985) (abuse of discretion to refuse to make findings in disposing of attorney's fee request under ERISA); Ironworkers' Local No. 272 v. Bowen, 624 F.2d 1255, 1266 (same), the actual award has not yet been made, and the trial court may remedy this defect by setting forth the reasons behind the award of attorney's fees in accordance with the criteria outlined in Ironworkers' Local No. 272 v. Bowen, 624 F.2d at 1266.
But see Student Symposium, Attorney's Fees Under ERISA: When Is an Award Appropriate?, 71 Cornell L.Rev. 1037, 1058-61 (1986) (criticizing five-factor test as redundant, inappropriate).