SISSEL COOPER, DOUGLAS COOPER, AND DANIEL COOPER, AS PERSONAL REPRESENTATIVES OF THE ESTATE OF I.S. COOPER, AND SISSEL COOPER, INDIVIDUALLY, APPELLANTS,
v.
AETNA CASUALTY & SURETY COMPANY, APPELLEE
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 held that prejudgment interest was not recoverable, but the trial court erred in retroactively applying a statute to limit attorney fees.
[1] Prejudgment interest is not recoverable in actions for personal injury damages, even when based on a contract of insurance.
[2] A statutory amendment affecting a substantive right and its concomitant burden cannot be retroactively applied to a cause of action that accrued prior to the amendment.
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 intelligenceAppellants sued their insurer, Aetna, for underinsured motorist coverage after an accident. The trial court found $1,000,000 in coverage and awarded p…
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 Substantive Rights cases and more on FLexlaw
SCHOONOVER, Judge.
Appellants, Sissel Cooper, Douglas Cooper, and Daniel Cooper, co-personal representatives of the estate of I.S. Cooper, seek review of an order denying prejudgment interest and an order awarding only a portion of attorney fees sought in the trial court. Since the entry of these orders, the judgment upon which the interest and additional attorney fees are sought has been reversed and remanded for a new trial by this court.1 We, accordingly, not only deny appellants their requested relief, but reverse, without prejudice, the order awarding them partial attorney fees.
On May 13, 1977, I.S. Cooper was riding as a passenger in an automobile that was struck in the rear by another automobile driven by Edward Carloni. Carloni had an insurance policy providing coverage in the amount of $100,000, which was paid to Dr. Cooper. Dr. Cooper claimed his damages greatly exceeded this amount and maintained that the uninsured/underinsured coverage available to him under his policy with appellee, Aetna Casualty and Surety Insurance Company, was in the amount of $1,000,000. Aetna denied coverage, alleging that the uninsured motorist protection purchased by Dr. Cooper was in the amount of $100,000. When the parties were unable to settle this dispute, Dr. Cooper and his wife, Sissel Cooper, filed an action against Aetna.2 The trial court en tered a partial summary judgment finding that the contract with Aetna provided $1,000,000 worth of protection to Dr. Cooper. This partial summary judgment was affirmed on appeal.3 The jury trial on the issue of damages resulted in a final judgment in favor of the Coopers.
The Coopers then filed a motion for attorney fees pursuant to section 627.428(1), Florida Statutes (1977), which provides for fees where an insured is successful in suing to enforce his insurance contract. On the basis of section 627.727(8), Florida Statutes (1983), which Aetna argued has retrospective application, Aetna opposed an award of fees other than those relating to the parties’ preliminary coverage dispute. The trial court agreed with Aetna and awarded attorney fees in the amount of $40,000. The court determined that the sum of $120,000 represented the total amount of fees involved in the action and that $40,000 of this sum reflected the fees relating to the coverage dispute. The court subsequently entered an order denying the Coopers’ request for prejudgment interest. The Coopers filed a timely notice of appeal from both of these orders. The appeals were then consolidated.
We agree with the trial court that prejudgment interest was not recoverable in this case because prejudgment interest is not allowed in actions for personal injuries. Parker v. Brinson Construction Co., 78 So. 2d 873 (Fla.1955); see also, Argonaut Insurance Co. v. May Plumbing Co., 474 So. 2d 212 (Fla.1985). Although the Coopers’ action was based upon a contract of insurance, it was still essentially one for the recovery of personal injury damages, and, accordingly, the Coopers were not entitled to prejudgment interest. Southeast Title & Insurance Co. v. Austin, 202 So. 2d 179 (Fla.1967).
We do find that the court erred in applying section 627.727(8) retroactively, and in limiting attorney fees to $40,000. In L. Ross Inc. v. R. W. Roberts Construction Co., 481 So. 2d 484 (Fla.1986), the supreme court held that the right to attorney fees is a substantive right, as is the burden on the party responsible for paying the fee. The court also ruled that a statutory amendment is also substantive where it affects a substantive right and concomitant burden. Section 627.727(8) therefore cannot be retroactively applied to the Coopers’ cause of action, which accrued in 1977, and the trial court should have awarded the Coopers the entire $120,000. Florida Farm Bureau Mutual Insurance Co. v. Quinones, 409 So. 2d 97 (Fla. 3d DCA), pet. for rev. denied, 419 So. 2d 1197 (Fla.1982).
Because, however, section 627.-428(1) only permits the award of fees upon the rendition of a judgment against an insurer, and this court in an earlier appeal reversed the judgment in favor of the Coopers and remanded for a new trial, no award of attorney fees can be upheld on this appeal. We, therefore, reverse the award of attorney fees without prejudice to appellants reapplying for them if they prevail in the new trial upon remand.
Affirmed in part, reversed in part, and remanded.
CAMPBELL, A.C.J., and LEHAN, J., concur. . Aetna Casualty & Surety Co. v. Cooper, 485 So. 2d 1364, (Fla. 2d DCA 1986).
. Subsequent to the filing of this appeal, I.S. Cooper died and Sissel Cooper, Douglas Cooper, and Daniel Cooper, co-personal representatives of his estate, were substituted as appellants.
. Aetna Casualty & Surety Co. v. Cooper, 447 So. 2d 241 (Fla. 2d DCA 1983).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
-
Lumbermens Mut. Cas. Co. v. Percefull, 653 So. 2d 389 (Fla. 1995)…t that a debt has been created. We distinguish Aetna Casualty & Surety Co. v. Langel, 587 So. 2d 1370 (Fla. 4th DCA 1991), United Services Automobile Ass’n v. Strasser, 530 So. 2d 1026 (Fla. 4th DCA 1988), and Cooper v. Aetna Casualty & Surety Co., 485 So. 2d 1367 (Fla. 2d DCA 1986), in which claims for prejudgment interest were denied. While these uninsured motorist recoveries were based upon contracts of insurance, they actually involved unliquidated personal injury damage claims. We approve the decision o…
-
AETNA Cas. & Sur. Co. v. Edward Langel & Joan Langel, 587 So. 2d 1370 (Fla. 4th DCA 1991)…action, i.e., an action on the UM provisions of the policy, and not a personal injury action as such; ergo, the pre-judgment interest. However, the law now appears settled to the contrary on the point. In Cooper v. [*1374] Aetna Casualty & Surety, 485 So. 2d 1367 (Fla. 2d DCA 1986), an action under a UM policy, our sister court said at 1368: “... although the [plaintiffs’] action was based upon a contract of insurance, it was still essentially one for the recovery of personal injury damages, and, accordingl…
-
SP Healthcare Holdings, LLC v. Surgery Ctr. Holdings, LLC, 208 So. 3d 775 (Fla. 2d DCA 2016)…of insurance, it was still essentially one for the recovery of personal injury damages, and, accordingly, the [plaintiffs] were not entitled to pre-judgment [sic] interest.” Id. at 1374 (alterations in original) (quoting Cooper v. Aetna Cas. & Sur., 485 So. 2d 1367, 1368 (Fla. 2d DCA 1986)). But in the case before us, the claims were for breach of warranty and for fraud based on the breach of warranty. Accordingly, once the [*781] liquidated damages had been determined, the trial court had no discretion not to…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Argonaut Ins. Co. v. MAY Plumbing Co., 474 So. 2d 212 (Fla. 1985)
- Parker v. Brinson Constr. Co. & Fla. Indus. Comm'n, 78 So. 2d 873 (Fla. 1955)
- L. Ross, Inc. v. R. W. Roberts Constr. Co., Inc., 481 So. 2d 484 (Fla. 1986)
- Fla. Farm Bureau Mut. Ins. Co. v. Quinones, 409 So. 2d 97 (Fla. 3d DCA 1982)
- Se. Title & Ins. Co. v. Austin, 202 So. 2d 179 (Fla. 1967)
- AETNA Cas. & Sur. Co. v. Sissel Cooper, 485 So. 2d 1364 (Fla. 2d DCA 1986)
- Bates v. State, 447 So. 2d 241 (Fla. 2d DCA 1983)
- AETNA Cas. & Sur. Co. v. I.S. Cooper, M.D., 447 So. 2d 241 (Fla. 2d DCA 1983)