STEPHEN P. CARLOUGH, APPELLANT,
v.
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, APPELLEE

Fla. 2d DCA | 1992-12-11
No. 91-03574
LEHAN, C.J., and HALL, J., concur.
609 So. 2d 770 Florida District Court of Appeal, Second District (1992) Positive Treatment
Cited by 11 cases

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.

Synopsis

Carlough appeals the trial court's denial of attorney's fees under Florida's insurance statute after obtaining a jury verdict for breach of an insurance contract. The court reverses, holding that because Carlough presented evidence supporting his entitlement to fees and Nationwide failed to present admissible evidence opposing the claim, Carlough should prevail on remand.


Holding

Carlough is entitled to attorney's fees. Because Carlough presented evidence supporting his entitlement to fees and Nationwide presented no admissible evidence opposing the claim at the evidentiary hearing, Carlough should prevail on the motion for attorney's fees.


Headnotes

[1] An insurer is liable for the insured's attorney's fees when the insured obtains a judgment against the insurer in a Florida state court.

[2] An insured is entitled to attorney's fees when an insurer breaches an insurance contract and the insured successfully prosecutes a suit to recover benefits.

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Key Quotes

“Although this was an evidentiary hearing, Nationwide provided no admissible evidence to the trial court to support its position that Nationwide was not responsible for attorney's fees in this case.”

Establishes that Nationwide's failure to present evidence at the hearing was dispositive of the attorney's fees issue.

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Facts & Procedural History

Carlough's boat was damaged by fire and insured by Nationwide. Nationwide initially authorized repairs and made advance payments of $25,551.36, but th…

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Opinion of the Court
PARKER, Judge.

PARKER, Judge.

Stephen Carlough appeals the trial court’s order denying Carlough’s request for attorney’s fees pursuant to section 627.-428, Florida Statutes (1991).1 We reverse.

In his amended complaint, Carlough alleged that fire damaged his boat, that Nationwide insured the boat, and that Nationwide refused to pay the money due him by virtue of the existing insurance policy. Carlough also sought attorney’s fees for Nationwide’s breach of the contract.

The jury found that Nationwide breached its contract of insurance with Carlough, decided the actual cash value of the vessel, and decided that the vessel was not a total loss as a result of the fire. The jury decided that the total cost of repairs was $68,-287, over and above Nationwide’s advance payments of $25,551.36, and awarded storage costs of $4,500. The trial court entered a final judgment in favor of Carlough in the amount of $72,787 and reserved jurisdiction to determine entitlement to attorney’s fees and costs.

At the hearing for attorney’s fees, Mr. Schold, Carlough’s trial counsel, testified to the following facts. Nationwide authorized repairs of the boat and made some advance payments for these repairs. Thereafter, Nationwide suddenly ceased payments to allow work to proceed in a timely fashion. Carlough sent a letter to Nationwide, through his counsel, that demanded the issues be resolved within forty-five days. Nationwide failed to provide the covered benefits within that time frame, and the instant litigation was commenced after eight to ten months of effort to resolve the matter. Copies of the letters which Mr. Schold had sent to Nationwide were introduced into evidence.

Nationwide’s attorney (Mr. Adams) advised the trial court prior to hearing testimony:

On behalf of Nationwide, we would object to any testimony with reference to a coverage issue in this ease, because the Court, by its own words, submitted this case to the jury only on the issue of damages, and the verdict form itself indicated that Nationwide had paid $26,000 in previous payments towards the repair of the vessel and, therefore, coverage was never an issue. It was never denied that payments were made, and if the Court will recall the testimony that Nationwide only stopped making repairs when Mr. Schold sent a letter and told them to quit. What’s the issue of coverage in this case, as far as 6.7428 [sic] is concerned?

We would object to any testimony from Mr. Schold or anybody else to get up there and rehash to this Court what the issues in this case were.

The trial court entered an order denying Carlough’s motion for attorney’s fees without setting forth the basis for its ruling.

Although this was an evidentiary hearing, Nationwide provided no admissible evidence to the trial court to support its position that Nationwide was not responsible for attorney’s fees in this case. If there was a transcript or pleading from the proceedings in this case which supported its position, Nationwide did not seek to have the trial court take judicial notice under section 90.202(6), Florida Statutes (1991). Carlough provided evidence in support of his position. Because only Carlough provided evidence supporting his position at the hearing, he should prevail upon his motion for attorney’s fees. Under the cir cumstances, upon remand, Nationwide should not be given a second bite at the apple to present evidence which it failed to produce at the scheduled evidentiary hearing. See In re Forfeiture of 1987 Chev. Corvette, 571 So. 2d 594 (Fla. 2d DCA 1990). “Somewhere the curtain must ring down on litigation.” Broward County v. Coe, 376 So. 2d 1222, 1223 (Fla. 4th DCA 1979).

Reversed and remanded with directions to the trial court to grant Carlough’s motion for attorney’s fees in an amount to be determined by the trial court.

LEHAN, C.J., and HALL, J., concur. . Appellant relies upon subsection one of that statute:

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 named beneficiary under a policy or contract executed by the insurer, the trial 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.

§ 627.428(1), Fla.Stat. (1991).


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Citator

Cited By

  • Correa v. U.S. Bank Nat'l Ass'n for Bacf 2006-D, 118 So. 3d 952 (Fla. 2d DCA 2013)
    …10). “The primary function of this court is to correct errors committed by the lower tribunal, not to serve as a conduit for unnecessarily protracted, piecemeal litigation.” Id. (citation omitted); see also Carlough v. Nationwide Mut. Fire Ins. Co., 609 So. 2d 770, 771-72 (Fla. 2d DCA 1992) (“[U]pon remand, Nationwide should not be given a second bite at the apple to present evidence which it failed to produce at the scheduled eviden-tiary hearing.”); State ex rel. City of Naples v. Cooper (In re Forfeiture o…
  • Marlyn Tracey v. Wells Fargo Bank, 264 So. 3d 1152 (Fla. 2d DCA 2019)
    …s who have failed to prove their case an opportunity to do so in a retrial. Thus, we reverse and remand with directions that the circuit court enter an involuntary dismissal of the foreclosure complaint."); Carlough v. Nationwide Mut. Fire Ins. Co., 609 So. 2d 770, 771-72 (Fla. 2d DCA 1992) ("Under the circumstances, upon remand, Nationwide should not be given a second bite at the apple to present evidence which it failed to produce at the scheduled evidentiary hearing. 'Somewhere the curtain must ring down o…
  • Domenico Loiaconi v. Gulf Stream Seafood, Inc., 830 So. 2d 908 (Fla. 2d DCA 2002)
    …ream should not have another opportunity to meet its burden. We agree that Gulf Stream is not entitled to the proverbial “second bite at the apple” to prove that venue in Sarasota County was not proper. See Carlough v. Nationwide Mut. Fire Ins. Co., 609 So. 2d 770, 772 (Fla. 2d DCA 1992); Van Der Noord v. Katz, 481 So. 2d 1228, 1230 (Fla. 5th DCA 1985). The order transferring venue is reversed. BLUE, C.J., and ALTENBERND, J., Concur.…

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