CONTINENTAL JANITORIAL CORPORATION, A FLORIDA CORPORATION, PETITIONER,
v.
NATIONWIDE UNDERWRITERS, INC., A FLORIDA CORPORATION, RESPONDENT
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Continental Janitorial appeals the denial of attorney's fees under Florida's insurance statute after prevailing against an insurer in a premium collection dispute. The court holds that the defendant qualifies as an insurer under Florida law and that Continental, having prevailed on appeal, is entitled to recover reasonable attorney's fees under Section 627.428.
Continental is entitled to reasonable attorney's fees for both the circuit court and appellate proceedings. The defendant qualifies as an insurer under Florida law because it issued an insurance policy, engaged in underwriting, countersigned the policy as authorized representative of the carrier, and collected premiums. The judgment was clearly against the insurer as required by the statute.
[1] An appellate court shall award reasonable attorney fees to an insured or beneficiary who prevails on appeal in an action against an insurer.
[2] An entity is considered an "insurer" under Florida Statutes for purposes of attorney fee awards when it issues insurance policies, is in the business of underwriting insu…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of an 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.”
This is the statutory basis for attorney's fees awards under Section 627.428, which the court applied to require fee awards when an insured prevails on appeal.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceNationwide Underwriters filed suit against Continental Janitorial for collection of allegedly owed insurance premiums. Continental was issued an insur…
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DAUKSCH, Judge.
The petition for Writ of Certiorari in this case alleges the circuit court, acting in its appellate capacity, departed from the essential requirements of law when it denied attorneys fees to appellant for its attorney on appeal. We agree and grant certiorari. Section 627.428, Florida Statutes (1977) provides:
Attorney fee.
(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of an 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.
(2) As to suits based on claims arising under life insurance policies or annuity contracts, no such attorney fee shall be allowed if such suit was commenced prior to expiration of 60 days after proof of the claim was duly filed with the insurer. (3) Where so awarded, compensation or fees of the attorney shall be included in the judgment or decree rendered in the case.
In order for petitioner to be entitled to the attorneys fees we must determine respondent is an insurer under Sections 624.03 and 624.04, Florida Statutes (1977). Respondent is an insurer within the meaning of the statutes because in its lower court complaint it alleged it issued the appellant an insurance policy; because it is an underwriter and in the business of underwriting insurance policies; because the policy which was at issue in the lower court was countersigned by respondent as agent for (it said “authorized representative”) the carrier; and because respondent was acting, at least, as a service representative (a mentioned “person” in Section 624.04, Florida Statutes (1977)), by collecting premiums.
In order for attorneys fees to be properly awarded we must find, in addition to the above finding that appellee is an insurer within the meaning of the statute, that the judgment be “against the insurer”. Section 627.428, Florida Statutes (1977). This was an action by the respondent against the petitioner for the collection of allegedly owed insurance premiums. Parenthetically, if it was not an insurance company how could it be owed insurance premiums? The judgment in this case was assuredly against the insurer—a verdict was directed in favor of the insured at the close of the insurer’s case at trial. Judgment upon that verdict was entered in favor of the insured and affirmed by the circuit court. The order denying attorneys fees is quashed and this cause is remanded for entry of an order affixing and awarding attorneys fees for petitioner both in the circuit court and this court.
Order QUASHED and REMANDED.
CROSS and LETTS, JJ., concur.
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State Comprehensive Health Ass'n v. Gerri A. Carmichael, 706 So. 2d 319 (Fla. 4th DCA 1997)…issue on the merits, we would nevertheless affirm because servicing agents, like Mutual, that issue policies, collect premiums, and act as. service representatives can be insurers. See Continental Janitorial Corp. v. Nationwide Underwriters, Inc.,. 368 So. 2d 112 (Fla. 4th DCA 1979). In addition, the trial court’s judgment could have also been predicated on plaintiffs claim of negligence by Mutual in the administration of the policy. We conclude that the trial court did not err by construing the exclusion s…