Klemick, as an officer of the court, had a duty to seek ethical alternative remedies. If, after negotiating with the Trust Fund, Klemick considered that the Trust Fund's refusal to waive the subrogation agreement would have had an inequitable result, he should have filed for a declaratory action asking for equitable distribution of the settlement funds. See e.g., Travelers Ins. Co. v. Rodriguez, 387 So.2d 341 (Fla. 1980); Lititz Mut. Ins. Co. v. Bowdoin, 365 So.2d 173 (1st DCA 1978); and Government Emp. Ins. Co. v. Graff, 327 So.2d 88 (1st DCA 1976). Instead, Klemick chose the most expedient course of conduct.
The majority's holding that med-pay benefits are not covered by section 627.736 by implication holds that the insurers retain their common law right of subrogation as to med-pay benefits. See Rodriguez v. Travelers Insurance Co., 367 So.2d 687 (Fla. 3d DCA 1979), approved, 387 So.2d 341 (Fla. 1980). This seems contrary to the policy expressed by the no-fault law.
Because she did not recover more than Aetna offered to pay her under the policy, Greenough did not prevail against Aetna and so was not entitled to recover an attorney's fee pursuant to Section 627.428, Florida Statutes (1979). Travelers Ins. Co. v. Rodriguez, 387 So.2d 341 (Fla. 1980); Lumbermens Mut. Ins. Co. v. Am. Arbitration, 398 So.2d 469 (Fla. 4th DCA 1981). The judgment appealed from is accordingly affirmed.
PER CURIAM. Affirmed. Travelers Insurance Co. v. Rodriguez, 387 So.2d 341 (Fla. 1980), affirming, 367 So.2d 687 (Fla.3d DCA 1979); Florida Farm Bureau Mutual Insurance Co. v. Quinones, 409 So.2d 97 (Fla.3d DCA 1982).