SOUTH CAROLINA INSURANCE COMPANY, APPELLANT/CROSS-APPELLEE,
v.
PENSACOLA HOME & SAVINGS ASSOCIATION, APPELLEE/CROSS-APPELLANT
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court granted a motion for rehearing and clarification, remanding the case for the assessment of interest, costs, and attorney's fees for the appellee, who was deemed an insured as a loss-payable mortgagee.
A loss-payable mortgagee, deemed an insured under Section 627.428(1), Florida Statutes, is entitled to attorney's fees when the insurer wrongfully withholds payment.
[1] A loss-payee's interest in insurance proceeds is reduced to the extent the underlying debt has been satisfied by subsequent events, such as a foreclosure sale.
[2] A party is bound by its bid at a judicial foreclosure sale, even if that bid is later asserted to be an error.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceThe appellee, a loss-payable mortgagee, was entitled to attorney's fees as an insured under the insurance policy. The court found that the appellee wa…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Satisfaction Of Debt cases and more on FLexlaw
LILES, WOODIE A., Associate Judge (Retired).
South Carolina Insurance Company (Appellant) appeals from an amended summary judgment entered in a suit on a fire insurance policy awarding the Plaintiff, Pensacola Home & Savings Association (Appellee), the sum of $17,265.11 plus interest, attorney’s fees, and costs. Appellant contends that it was only liable to Appellee for the amount of $10,705.16. Appellee cross-appeals, asserting that it is entitled to a judgment for $21,000.00 plus interest, attorney’s fees and costs.
The material facts to this appeal are undisputed. Appellee held a mortgage on certain real property owned by G.F.G. Build ers, Inc., which was not a party to this action. The mortgage required G.F.G. to obtain a fire insurance policy naming Ap-pellee as the loss-payable mortgagee. Ap-pellee’s interest in the policy was as follows:
Loss, if any on the property subject to this clause as specified on the reverse side, shall be payable to the mortgagee (or trustee) as provided herein, as interest may appear, and this insurance, as to the interest of the mortgagee (or trustee) only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property, or by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property, nor by the occupation of the premises for purpose more hazardous than are permitted by this policy: Provided That in any case the mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee (or trustee) shall, on demand, pay the same.
The face amount of the insurance policy was $21,000.00. Appellee filed suit to foreclose upon its mortgage on December 16, 1977. On December 20, 1977, a fire caused $21,450.00 damage to the insured property. The mortgage debt at the time of the fire was $22,765.11. A final judgment of foreclosure was entered, finding the amount due under the note and mortgage to be $24,705.16. At a judicial sale, Appellee purchased certificate of title on the property for $14,000.00. Appellee then filed suit seeking the full $21,000.00 insurance proceeds. Appellant filed its answer and affirmative defense, asserting that Appellee was entitled to recover only $10,705.16 (the amount due under the note and mortgage less the amount realized at the foreclosure sale). Appellee replied and asserted that its $14,-000.00 bid was the result of an error and was greatly in excess of the value of the property. By affidavit of its assistant secretary/assistant treasurer, Appellee also asserted that the real value of the property at the time of the foreclosure sale was $5,500.00. Both parties moved for summary judgment in the above-noted amounts. The trial court entered a final judgment finding for Appellee in the amount of $17,-265.11 (the mortgage balance on the date of the fire less the appraised value of the property after the fire) plus costs and attorney’s fees. We reverse.
Where a fire loss occurs and a loss-payee is thus vested with rights under the insurance policy, subsequent partial or full extinguishment of the debt giving rise to the insurable interest will reduce the loss-payee’s interest in the proceeds to the extent that the debt has been satisfied. Rosenbaum v. Funcannon, 308 F. 2d 680 (9th Cir. 1962); Lutheran Brotherhood v. Hooten, 237 So. 2d 23 (Fla.2nd DCA 1970). The underlying policy behind this result is best expressed as follows:
“The creditor’s interest in the insurance proceeds is recognized as security for the payment of the debt. The insurance is an alternative source of payment and once the debt is paid by some other means any right to the insurance is thereby extinguished. Equity requires that subsequent events such as payment of the underlying debt not be ignored when the court distributes the insurance proceeds.” Calvert Fire Insurance Co. v. Environs Development Corp., 601 F. 2d 851, 856 (5th Cir. 1979).
Therefore, we conclude that Appel-lee’s interest in the insurance proceeds has been reduced to the extent of its bid on the foreclosed property. See Mortgage Securities, Inc. v. South Carolina Insurance Co., No. C 78-12805 A (N.D.Ga. September 23, 1980). We also note that Appellee is bound by its bid of $14,000.00. See Calvert Fire Insurance Co., supra; Nationwide Financial Corp. v. Banks, 147 Ga.App. 73, 248 S.E. 2d 54 (1978); Whitestone Savings & Loan Association v. Allstate Insurance Company, 28 N.Y.2d 332, 321 N.Y.S.2d 862, 270 N.E. 2d 694 (1971). Accordingly, we reverse the decision of the trial court and amend the judgment to reflect an award of $10,705.16.
REVERSED.
ROBERT P. SMITH, Jr. and THOMPSON, JJ., concur.
LILES, WOODIE A. (Retired), Associate Judge.
Appellee requests a rehearing and clarification of the Court’s original opinion which would remand the case to the trial court for an award of interest, costs, and attorney’s fees incurred at the trial level.
Appellee, as the loss-payable mortgagee under the insurance policy, is deemed “an insured” pursuant to Section 627.428(1), Florida Statutes, and thus is entitled to attorney’s fees. Vermont Mutual Insurance Company v. Bolding, 381 So. 2d 320 (Fla. 5th DCA 1980). Further, Appellee is still entitled to these fees since the $10,-705.16 awarded by this Court exceeds the liability recognized by Appellant in the trial court. Indeed, Appellant asserted in its answer that only $8,765.11 was owed. This position was reasserted in its motion for summary judgment. It was not until the day of the hearing on the motions for summary judgment that Appellant conceded that $10,705.16 plus interest was owed. This delay in offering to pay the proper amount due under the insurance policy amounts to a wrongful withholding and justifies an award of attorney’s fees. See Employers’ Liability Assurance Corporation v. Royals Farm Supply, 186 So. 2d 317, 321 (Fla. 2nd DCA 1966).
Accordingly, we remand to the trial court for assessment of interest, costs, and attorney’s fees based upon the reduced amount awarded by this Court.
The Motion for Rehearing and Clarification is granted, and the cause is remanded for further proceedings consistent with this opinion.
ROBERT P. SMITH, Jr. and THOMPSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Gov't Emps. Ins. Co. v. Lazara E. Gonzalez, 512 So. 2d 269 (Fla. 3d DCA 1987)…es to Gonzalez, certainly within the 30 day period provided by section 627.-736(4)(b), Florida Statutes (1983).4 See Great Southwest Fire Ins. Co. v. DeWitt, 458 So. 2d 398 (Fla. 1st DCA 1984); South Carolina Ins. Co. v. Pensacola Home & Sav. Ass’n, 393 So. 2d 1124 (Fla. 1st DCA 1980). Instead, the appellant waited over two months to do so. On either or both of these bases, GEICO was liable for attorney’s fees. Ray, 477 So. 2d at 634; Prudential Ins. Co. of America v. Institute for Marine Science, Inc., 371 S…
-
S.C. Ins. Co. v. Pensacola Home & Sav. Ass'n, 406 So. 2d 1280 (Fla. 1st DCA 1981)…CURIAM. South Carolina Insurance Company appeals a summary judgment finding it liable to its named insured for the remainder of the coverage after compensation of a loss-payable mortgagee, see South Carolina Insurance v. Pensacola Home & Savings, 393 So. 2d 1124 (Fla. 1st DCA 1981). The judgment provides for interest at the rate of 8% from August 22, 1978. There is no error except in the award of pre-judgment interest. The parties agree that the appropriate rate is 6%, § 687.01 Fla.Stat. (1979). The claim…
-
Vaughan v. Progressive Am. Ins. Co., 435 So. 2d 889 (Fla. 1st DCA 1983)…tes decisions from this court, Aetna Life Insurance Company v. Sievert, 361 So. 2d 747 (Fla. 1st DCA 1978), which denied recovery of fees, citing Roberts v. Carter, supra, and South Carolina Insurance Company v. Pensacola Home & Savings Association, 393 So. 2d 1124 (Fla. 1st DCA 1978), which allowed attorney’s fees because the loss-payable mortgagee under the insurance policy was deemed “an insured” pursuant to the statute (Section 627.428(1)), thus factually distinguishing that case from Roberts v. Carter. A…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Emp'rs' Liab. Assurance Corp., Ltd. v. Royals Farm Supply, Inc., 186 So. 2d 317 (Fla. 2d DCA 1966)
- Rosenbaum v. Funcannon, 308 F.2d 680 (9th Cir. 1962)
- Calvert Fire Ins. Co. v. Environs Dev. Corp., 601 F.2d 851 (5th Cir. 1979)
- Lutheran Brotherhood v. Hooten, 237 So. 2d 23 (Fla. 2d DCA 1970)
- Vt. Mut. Ins. Co. v. Bolding, 381 So. 2d 320 (Fla. 5th DCA 1980)