LUCIO AVILA, PLAINTIFF/APPELLANT,
v.
LATIN AMERICAN PROPERTY AND CASUALTY INSURANCE COMPANY, DEFENDANT/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.
Lucio Avila appealed the denial of attorney's fees following dismissal of his insurance claim lawsuit against Latin American Property and Casualty Insurance Company. The court reversed and remanded, holding that if the insurer made a payment on the claim prior to dismissal, such payment constitutes a settlement entitling the insured to attorney's fees under Florida Statute 627.428.
If Latin American issued a check as payment on a properly submitted claim that had been denied prior to dismissal, such payment constitutes a settlement under Florida law, entitling Avila to mandatory attorney's fees. The case is remanded for the trial court to determine whether such a payment was made, and if so, to determine the reasonableness of the requested fees.
[1] An insured is entitled to attorneys' fees under section 627.428, Florida Statutes, for litigating whether the insured and the insurer settled a coverage issue during a la…
[2] Section 627.428, Florida Statutes, allows an award of attorneys' fees to an insured who successfully argues that the insurer agreed to settle a coverage issue in litigati…
Previewing 2 of 6 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“Where an insurer has agreed to settle a disputed case, it has, in effect declined to defend its position in the pending suit. The insurer's payment of the claim has been deemed the functional equivalent of a confession of judgment or a verdict in favor of the insured.”
Establishes the legal standard that settlement by payment entitles insured to attorney's fees
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAvila suffered personal injuries from an automobile accident while his auto insurance policy with Latin American was in full force and effect. Latin A…
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 Attorney'S Fees Entitlement cases and more on FLexlaw
GERSTEN, Judge.
This appeal arises from an order denying the award of attorney’s fees to an insured, which followed an order granting the insurer’s motion to dismiss. The insured, appellant Lucio Avila (Avila), raises the issue of his entitlement to attorney’s fees, pursuant to section 627.428, Florida Statutes (1987). We reverse and remand.
The record reveals that Avila suffered personal injuries from an automobile accident while his automobile insurance policy was in full force and effect with appellee, Latin American Property and Casualty Insurance Company (Latin American). Latin American failed to pay Avila’s claim and Avila brought an action seeking declaratory relief. The action was dismissed pursuant to Latin American’s motion to dismiss for failing to state a cause of action. Avila seeks attorney’s fees claiming that a payment made by Latin American constitutes a settlement.
The issue of awarding attorney’s fees under section 627.428, Florida Statutes, has been litigated and is now well settled in the State of Florida. Where an insurer has agreed to settle a disputed case, it has, in effect declined to defend its position in the pending suit. The insurer’s payment of the claim has been deemed the functional equivalent of a confession of judgment or a verdict in favor of the insured. Such settlement furnishes the basis for an award of attorney’s fees to the insured. Wollard v. Lloyd’s and Companies of Lloyd’s, 439 So. 2d 217 (Fla.1983); Fortune Insurance Company v. Brito, 522 So. 2d 1028 (Fla. 3d DCA 1988).
In the instant case, Latin American contends there was no payment prior to the dismissal and, thus, no settlement within the meaning of Wollard and Brito. Yet, Avila states that he received a check for medical benefits under the policy — after commencement of the action and prior to dismissal. Either this check was issued or it was not. If Latin American did issue this check as payment for a claim that had been properly submitted, but then denied, prior to the dismissal of the suit, then Latin American did “settle” within the meaning of Wollard and Brito. Assuming arguen-do, that the check was issued, then Avila would certainly be entitled to attorney’s fees.
This action is remanded for findings as to whether a check was issued by Latin American as payment on a claim submitted to Latin American before the dismissal was entered. If so, then the payment constituted a settlement, and attorney’s fees are mandatory. The court should then determine the reasonableness of the requested attorney’s fees. Fortune Insurance Company v. Brito, 522 So. 2d at 1029-30. Reversed and remanded for proceedings not inconsistent with this opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Brown v. Vt. Mut. Ins. Co., 614 So. 2d 574 (Fla. 1st DCA 1993)…ithout further intervention on behalf of” Evans; Vermont Mutual’s actions “constitute a settlement and an award of an attorney’s fee against it and in favor of said Plaintiff [City Federal] is mandatory. (Avila v. Latin American Property & Casualty, 548 So. 2d 894 [Fla. 3d DCA 1989])” (sic); Evans had obtained this settlement and advanced certain costs and expenses for City Federal; and Evans “fears that some effort may be made to attempt to deprive him of the fee to which he is entitled in this instance and…1 / 2
-
O.A.G. Corp. v. Britamco Underwriters, Inc., 707 So. 2d 785 (Fla. 3d DCA 1998)…the basis for an award of attorney’s fees to the insured. Wollard v. Lloyd’s and Companies of Lloyd’s, 439 So. 2d 217 (Fla.1983); Fortune Insurance Company v. Brito, 522 So. 2d 1028 (Fla. 3d DCA 1988). Avila v. Latin American Prop. & Cas. Ins. Co., 548 So. 2d 894, 894-95 (Fla. 3d DCA 1989). See U.S. Fidelity & Guaranty Co. v. Rosado, 606 So. 2d 628 (Fla. 3d DCA 1992); Losicco v. Aetna Cas. and Sur. Co., 588 So. 2d 681 (Fla. 3d DCA 1991); Hopkins v. The Vizcayans, 582 So. 2d 689 (Fla. 3d DCA), review denied,…
-
Kook C. DO v. GEICO Gen. Ins. Co., 137 So. 3d 1039 (Fla. 3d DCA 2014)…s. Co., 982 So. 2d 15 (Fla. 5th DCA 2008). III. ANALYSIS “The issue of awarding attorney’s fees under section 627.428, Florida Statutes, has been litigated and is now well settled in the State of Florida.” Avila v. Latin Am. Prop. & Cas. Ins. Co., 548 So. 2d 894, 894 (Fla. 3d DCA 1989). Section 627.428 provides, in relevant part: (1) Upon 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 named beneficiary under a poli…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wollard v. Lloyd's & Cos. OF Lloyd's, 439 So. 2d 217 (Fla. 1983)
- Ashley v. State, 522 So. 2d 1028 (Fla. 3d DCA 1988)