LINDA JOYCE EARNEST, N/K/A LINDA CASTILLO, APPELLANT,
v.
SOUTHEASTERN FIDELITY INSURANCE COMPANY, APPELLEE
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Linda Earnest appealed an order denying her attorney's fees and pre-judgment interest in an insurance coverage dispute with Southeastern Fidelity Insurance Company. The court affirmed the denial of pre-judgment interest but reversed the denial of attorney's fees, finding Earnest entitled to recover reasonable attorney's fees under Florida Statutes § 627.428(1) as a non-named insured in a first-party relationship with the insurer.
The court affirmed the denial of pre-judgment interest but reversed the denial of attorney's fees. Earnest was entitled to a reasonable attorney's fee under § 627.428(1) because she was in a first-party relationship with the insurer and was effectively standing in the shoes of the named insured, distinguishing her from third-party beneficiaries who are not entitled to such fees.
[1] An insurer is liable for attorney's fees incurred by an individual who, while not the named insured, is in a first-party relationship with the insurer and is forced to li…
[2] A party standing in the shoes of the insured may be entitled to attorney's fees under Florida Statutes section 627.428(1).
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 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 awarding attorney's fees under § 627.428(1), which the court applied to Earnest's situation.
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Join FLexlaw to unlock all legal intelligenceEarnest was a passenger in a vehicle owned by her father when she sustained injuries. Southeastern Fidelity Insurance Company brought an action seekin…
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PER CURIAM.
This is an appeal by Linda Earnest from an order of the Circuit Court of Dade County denying Her attorney’s fees and pre-judgment interest in an action brought by the appellee against her. The action sought a declaratory judgment that she was not entitled to the $20,000 uninsured motorist coverage provided in appellee’s policy issued to her father who owned the vehicle in which she was a passenger when she sustained the injuries for which she sued.
We find no merit in appellant’s claim for pre-judgment interest and affirm the trial court’s order denying such claim. Southeast Title and Insurance Co. v. Austin, 202 So. 2d 179 (Fla.1967).
As to the order denying appellant’s motion for attorney’s fees in the trial court, we reverse and remand to the trial court for the entry of an order allowing appellant a reasonable attorney’s fee for her attorney’s services rendered in connection with her recovery of damages under the policy of insurance and for his services relative to her claim for attorney’s fees in the trial court. Appellant’s entitlement to attorney’s fees arises under section 627.428(1), Florida Statutes (1979).1 The question of whether appellant was covered by the policy issued to her father has been answered in the affirmative on prior remand of this cause 2 and is not an issue in the present appeal. The statute has been interpreted as creating liability against an insurer for attorney’s fees incurred by an individual who, while not the named insured, is in a first-party relationship to the insurer against whom he has been forced to litigate the coverage issue. E.g., United States Fidelity & Guaranty Co. v. State Farm Mut. Auto. Ins. Co., 369 So. 2d 410 (Fla. 3d DCA 1979) (insurer responsible for attorney’s fees of resident spouse of named insured); Smith v. Conlon, 355 So. 2d 859 (Fla. 3d DCA 1978) (insurer liable for attorney’s fees of individual unrelated to named insured, on jury finding that he used car of named insured with permission); but cf. Roberts v. Carter, 350 So. 2d 78 (Fla.1977) (adverse party’s insurer not liable for attorney’s fees of injured plaintiff/third-party beneficiary where coverage was denied and insurer ultimately held responsible).
We believe the • case at bar presents a proper situation for an award of attorney’s fees to appellant as she was in effect “standing in the shoes” of the insured and thus does not come within the proscription that “the attorney fee provision of § 627.428 was not intended to benefit the party injured by the insured automobile ...” Wilder v. Wright, 278 So. 2d 1 (Fla.1973); see also Roberts v. Carter, supra.
Affirmed in part and reversed in part with directions. It is so ordered.
. 627.428 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.
. Southeastern Fidelity Insurance Co. v. Earnest, 395 So. 2d 230 (Fla. 3d DCA 1981).
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Indus. Fire & Cas. Ins. Co. v. Prygrocki, 422 So. 2d 314 (Fla. 1982)…ey’s fees to persons insured under an insurance contract. See Spaulding v. American Fire & Indemnity Co., 412 So. 2d 367 (Fla. 4th DCA 1981) (attorney’s fees awarded to passenger in insured vehicle); Earnest v. Southeastern [*316] Fidelity Ins. Co., 407 So. 2d 995 (Fla. 3d DCA 1981) (daughter who recovered under father’s uninsured motorist policy awarded attorney’s fees); Norfolk (wife of named insured entitled to recover attorney’s fees); United States Fidelity & Guaranty Co. (insurer required to pay attorne…
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Earnest v. Se. Fid. Ins. Co., 422 So. 2d 1092 (Fla. 3d DCA 1982)…SCHWARTZ, Judge. This case makes its fourth appearance before us.1 The last time, Earnest v. Southeastern Fidelity Ins. Co., 407 So. 2d 995 (Fla. 3d DCA 1981), it was remanded for the assessment of fees to be granted the insured’s attorney. After a hearing at which the only expert testimony was that [*1093] an appropriate award was between $10,000 and $12,000, the trial judge set the fe…1 / 2
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Pirretti v. Dean Witter Reynolds, Inc., 578 So. 2d 474 (Fla. 4th DCA 1991)…Bill Rivers Trailers, Inc. v. Miller, 489 So. 2d 1139 (Fla. 1st DCA 1986); B & L Motors, Inc. v. Bignotti, 427 So. 2d 1070 (Fla. 2d DCA 1983); Tiedeman v. City of Miami, 529 So. 2d 1266 (Fla. 3d DCA 1988); Earnest v. Southeastern Fidelity Ins. Co., 407 So. 2d 995 (Fla. 3d DCA 1981). We recognize that the court’s discretion to award such additional fees may not be without exception, as where the employment agreement between the client and attorney does not obligate the client to compensate the attorney for e…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Roberts v. Carter, 350 So. 2d 78 (Fla. 1977)
- Wilder v. Wright, 278 So. 2d 1 (Fla. 1973)
- United States Fid. & Guar. Co. v. State Farm Mut. Auto. Ins. Co., 369 So. 2d 410 (Fla. 3d DCA 1979)
- Smith v. Conlon, 355 So. 2d 859 (Fla. 3d DCA 1978)
- Se. Fid. Ins. Co. v. Earnest, 395 So. 2d 230 (Fla. 3d DCA 1981)
- Se. Title & Ins. Co. v. Austin, 202 So. 2d 179 (Fla. 1967)
- Saye v. Patterson's Cold Storage & Aetna Ins. Co., 378 So. 2d 787 (Fla. 1st DCA 1979)