NATIONAL FOUNDATION LIFE INSURANCE COMPANY, APPELLANT/APPELLEE,
v.
JAMES E. WELLINGTON AND MARY G. WELLINGTON, APPELLEES/APPELLANTS
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National Foundation Life Insurance Company appealed a jury verdict finding it breached an agreement to withdraw insurance premiums from the plaintiff's bank account, resulting in judgment for the plaintiffs on their insurance coverage claim. The plaintiffs cross-appealed the attorney's fee award as inadequate. The court affirmed both the judgment and the fee award, holding that the breach of the withdrawal agreement meant the policy was never in default and coverage was proper.
Yes, the company's breach of the withdrawal agreement meant the policy was never in default, so coverage was proper and the trial court correctly entered judgment for the plaintiffs. No, the trial court did not abuse its discretion in refusing to apply a contingency risk multiplier to the attorney's fees award.
[1] A jury verdict finding an insurer breached its agreement by failing to withdraw funds for premium payments supports a judgment for the insured when the sole basis for den…
[2] Consistent jury findings, even if they reject alternative theories of recovery, do not compel a judgment for the defendant if the primary theory of liability is supported…
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“The jury found that the defendant had breached its agreement with the plaintiffs by failing to withdraw, as agreed, monies from the plaintiff James Wellington's bank account to pay for the insurance premiums on the subject insurance policy. This being so, there was clearly insurance coverage for the plaintiff Mary Wellington on the subject insurance policy because, without dispute, the sole basis for the defendant's denial of coverage was nonpayment of the required insurance premiums”
Establishes the core holding that breach of the withdrawal agreement negates the nonpayment defense and entitles plaintiffs to coverage
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceNational Foundation Life Insurance Company issued an insurance policy on Mary Wellington. The company agreed to withdraw premium payments from James W…
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PER CURIAM.
The defendant National Foundation Life Insurance Company appeals from a final judgment, entered upon a special interrogatory jury verdict; the plaintiffs, in turn, appeal from an attorney’s fee award entered in their favor which they assert as being inadequate. We affirm both the final judgment and the attorney’s fee order based on the following briefly stated legal analysis.
First, we reject the defendant’s sole point on appeal that the trial court should have entered judgment in its favor based on the special interrogatory verdict.
The jury found that the defendant had breached its agreement with the plaintiffs by failing to withdraw, as agreed, monies from the plaintiff James Wellington’s bank account to pay for the insurance premiums on the subject insurance policy. This being so, there was clearly insurance coverage for the plaintiff Mary Wellington on the subject insurance policy because, without dispute, the sole basis for the defendant’s denial of coverage was nonpayment of the required insurance premiums; accordingly, the trial court properly entered judgment for the plaintiffs. See Equitable Life Assurance Soc’y v. Mittelhauser, 130 Fla. 794, 178 So. 559, 562 (1937); cf. Travelers Indent. Co. v. Dana, 434 So. 2d 48 (Fla. 3d DCA 1983); Crawford v. DiMicco, 216 So. 2d 769, 774 (Fla. 4th DCA 1968).
See generally 31 Fla.Jur.2d Insurance § 654 (1981).
Second, we have not overlooked the jury’s further finding that the defendant properly cancelled the policy. This finding, however, rejected an alternative theory for insurance coverage urged by the plaintiffs —namely, that the defendant had never billed the plaintiffs for the insurance premiums owed, or, if it did, there was confusion over how the premium was to be paid, and, therefore, the insurance policy would not be properly cancelled for nonpayment of premium. This finding does not conflict with the jury’s acceptance of the plaintiff’s first theory of insurance coverage, namely, that the policy was never in default in the first place.
We reject the defendant’s argument that the jury’s findings, although consistent, compelled an entry of judgment for the defendant. See Papcun v. Piggy Bag Discount Souvenirs, Food & Gas Corp., 472 So. 2d 880, 881 (Fla. 5th DCA 1985); Gould v. National Bank of Fla., 421 So. 2d 798, 802 (Fla. 3d DCA 1982).
Finally, we reject the plaintiffs’ contention that the trial court committed reversible error in refusing to apply a contingency risk multiplier in calculating the award of attorney’s fees in their favor under Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145, 1151-52 (Fla.1985).
No abuse of discretion has been shown on this record in the trial court’s determination that such a multiplier should not be used in this case. We do not read Rowe to compel a trial court to apply such a multiplier factor simply because the prevailing party and his attorney have, as here, entered into a contingency fee contract. See Jordan v. Multnomah Co., 815 F. 2d 1258, 1264 (9th Cir.1987) (affirmance of lower court refusal to apply multiplier because party failed to carry their burden of justifying entitlement to an upward adjustment); Bennett v. Central Tel. Co., 619 F.Supp. 640, 653 (N.D.Ill.1985); Cherry v. Rockdale County, 601 F.Supp. 78, 80-81 (N.D.Ga.1984); cf. Travelers Indem. Co. v. Sotolongo, 513 So. 2d 1384, 1385 (Fla. 3d DCA 1987) (Rowe does not require use of a multiplier in every case where success is unlikely.).
Affirmed.
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Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990)…oncurs in part and dissents in part with an opinion. . We have jurisdiction pursuant to article V, section 3(b)(3), of the Florida Constitution. We also find that the instant case conflicts with National Foundation Life Insurance Co. v. Wellington, 526 So. 2d 766 (Fla. 3d DCA 1988). . Section 627.428, Florida Statutes (1987), states, in pertinent part: (1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the nam…
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Ganson v. State, 554 So. 2d 522 (Fla. 1st DCA 1989)…the Third District Court of Appeal have concluded that the contingency risk multiplier is not mandatory. See Bankers Insurance Company v. Valmore Gonzalez, 545 So. 2d 907 (Fla. 3d DCA 1989); National Foundation Life Insurance Company v. Wellington, 526 So. 2d 766 (Fla. 3d DCA 1988); Travelers Indemnity Company v. Sotolongo, 513 So. 2d 1384 (Fla. 3d DCA (1987). Although the matter is not entirely free from doubt, unless and until the matter is further clarified by the Florida Supreme Court, it would appear th…
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Four Star Poultry & Provision Co., Inc. v. Morales, 547 So. 2d 1034 (Fla. 3d DCA 1989)…PER CURIAM. Affirmed. National Foundation Life Insurance Company v. Wellington, 526 So. 2d 766 (Fla. 3d DCA 1988).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. Patient's Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985)
- Gould v. Nat'l Bank OF Fla., 421 So. 2d 798 (Fla. 3d DCA 1982)
- Papcun v. Piggy BAG Discount Souvenirs, 472 So. 2d 880 (Fla. 5th DCA 1985)
- Jordan v. Multnomah Cnty., 815 F.2d 1258 (9th Cir. 1987)
- Crawford v. DiMICCO, 216 So. 2d 769 (Fla. 4th DCA 1968)
- Travelers Indem. Co. v. Sotolongo, 513 So. 2d 1384 (Fla. 3d DCA 1987)
- The Equitable Life Assurance Soc'y of the United States v. Mittelhauser, 130 Fla. 794 (Fla. 1937)
- City Sav. & Loan Ass'n OF Fla. v. State, 434 So. 2d 48 (Fla. 3d DCA 1983)
- The Travelers Indem. Co. v. Dana, 434 So. 2d 48 (Fla. 3d DCA 1983)