FORTUNE INSURANCE COMPANY, PETITIONER,
v.
LOURDES CARDOSO AND IVONNE PALOMINO, RESPONDENTS
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 appellate division departed from the essential requirements of law by awarding attorney's fees under section 627.428 when no recovery was had by the insureds.
Claimants sued for uninsured motorist benefits, voluntarily dismissed their action, and were later awarded appellate attorney's fees. Fortune Insuranc…
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 Common Law Certiorari cases and more on FLexlaw
PER CURIAM.
Fortune Insurance Company petitions for a writ of common law certiorari seeking review of an order from the appellate division of the circuit court awarding attorney’s fees. For the following reasons, we grant the petition and quash the order under review.
In 1988, Cardoso, Palomino, and their husbands sued Fortune in Dade County Court for uninsured motorist benefits. The claimants voluntarily dismissed their action after discovering that they had not met their deductibles. Fortune requested and was awarded attorney’s fees pursuant to section 57.105, Florida Statutes (1987). Upon the claimants’ appeal to the appellate division of the circuit court, the award of fees was reversed. The claimants then moved for, and were awarded, appellate attorney’s fees pursuant to section 627.428, Florida Statutes (1989).
The appellate division departed from the essential requirements of the law in awarding such fees. Section 627.428 provides that appellate attorney’s fees are to be awarded “in the event of an appeal in which the insured or beneficiary prevails ... as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.” (Emphasis added.) No recovery was had in this case. In the trial court, the claimants took a voluntary dismissal; in the appellate division of the circuit court the claimants successfully, but narrowly, avoided the imposition of fees under section 57.105. Accordingly, they were not entitled to an award of fees under section 627.428 as the appeal was not related to the recovery of insurance benefits.
Petition granted; order quashed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
O.A.G. Corp. v. Britamco Underwriters, Inc., 707 So. 2d 785 (Fla. 3d DCA 1998)…r attorney’s fees. See Danis Industries Corp. v. Ground Improvement Techniques, Inc., 645 So. 2d at 420; Baker Protective Services v. FP Inc., 659 So. 2d 1120 (Fla. 3d DCA 1995), review denied, 669 So. 2d 250 (Fla.1996); Fortune Ins. Co. v. Cardoso, 592 So. 2d 1245 (Fla. 3d DCA 1992). In this case, the insureds recovered nothing from Britamco’s voluntary dismissal.2 Simply, the insureds are prematurely seeking attorney’s fees prior to a determination regarding coverage in their favor and/or payment of the cla…1 / 2
-
Beaches MRI of PB v. State Farm (15th Cir. Ct. App. Div. 2011)…MRI did prevail against State Farm in its action to enforce the contract, therefore there can be no entitlement to attorney's fees based upon section 627.428 in this appeal of an award of section 57.105 attorney's fees. Fortune Ins. Co. v. Cardoso, 592 So. 2d 1245 (Fla. 3d DCA 1992) (reversing circuit court's award of appellate attorney's fees where insureds did not prevail in their underlying claim and were thus not entitled to 627.428 fees in appeal of an award of 57.105 fees). Beaches MRI's claim for attor…