ALLSTATE INSURANCE COMPANY, APPELLANT,
v.
GUSTAVO DE LA FE, APPELLEE
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Allstate appeals an award of appellate attorney's fees to De La Fe following reversal of a dismissal in an insurance coverage dispute. The court holds that attorney's fees under Florida's insurance statute may only be awarded if the insured ultimately prevails on the merits, not merely upon reversal of a procedural dismissal.
Attorney's fees under Florida's insurance statute may only be awarded to the prevailing insured where 'recovery is had' on the policy, meaning the insured must ultimately prevail on the merits. An award of appellate attorney's fees following reversal of a procedural dismissal should be conditioned upon the insured ultimately prevailing with actual recovery on the policy.
[1] An award of attorney's fees to a prevailing insured under Florida Statutes sections 627.428 and 59.46 is conditioned upon the insured ultimately recovering on the policy.
[2] A trial court errs by awarding attorney's fees to an insured prior to a resolution of the case on its merits, even if appellate attorney's fees were previously granted.
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Join FLexlaw to unlock all legal intelligence“Sections 627.428 and 59.46, Florida Statutes (1991), allow the award of attorney's fees to the prevailing insured only where 'recovery is had.'”
Establishes the statutory requirement that attorney's fees are limited to situations where the insured achieves actual recovery on the policy.
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Join FLexlaw to unlock all legal intelligenceDe La Fe filed an insurance claim with Allstate following a car accident, and Allstate denied coverage. De La Fe sued for declaratory judgment and bre…
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BARKDULL, Judge.
Appellant, Allstate Insurance Co., seeks review of an award of attorney’s fees.
Appellee, Gustavo De La Fe, filed a claim with Allstate following an automobile accident. Allstate denied coverage. In turn, De La Fe filed a complaint against Místate seeking (1) a declaratory judgment regarding his benefits and attorney’s fees and (2) damages for breach of contract. The trial judge dismissed De La Fe’s amended complaint with prejudice. De La Fe appealed to this court. Prior to filing an answer brief, Allstate confessed error to the dismissal. This court accepted the confession of error and issued its opinion reversing the final order of dismissal. De La Fe v. Allstate Ins. Co., 600 So. 2d 576 (Fla. 3d DCA 1992). De La Fe filed a motion for appellate attorney’s fees which was granted by this court. In its order, this court stated that the “motion is granted and remanded to the trial court to fix amount.” On remand, before a resolution of-the case on the merits, the trial court awarded appellate attorney’s fees to De La Fe. Allstate now appeals the trial court’s order awarding fees.
Appellant urges that the trial judge exceeded his authority by awarding attorney’s fees where this court’s order merely directed the lower court to “fix” the amount of attorney’s fees. Sections 627.428 and 59.46, Florida Statutes (1991), allow the award of attorney’s fees to the prevailing insured only where “recovery is had.” The issues previously before this court were procedural and did not involve the merits of the case. Thus, the trial court erred by awarding attorney’s fees prior to deciding the case on its merits.
We agree and recognize that our prior order, in the earlier case granting the motion for appellate fees, should have been conditioned upon the insured ultimately prevailing with a recovery on the policy. See § 627.428, Fla.Stat. (1991); State Farm Mut. Auto. Ins. v. Cedolia, 571 So. 2d 1386 (Fla. 4th DCA 1990); Segelstrom v. Blue Shield of Florida, Inc., 233 So. 2d 645 (Fla. 2d DCA 1970); compare Key v. Angrand, 638 So. 2d 628 (Fla. 3d DCA 1994).
The order under review is reversed as to enforcement until such time as the plaintiff ultimately prevails, but the amount awarded is affirmed.
Reversed in part, affirmed in part.
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Foley v. The Honorable J. Leonard Fleet, 652 So. 2d 962 (Fla. 4th DCA 1995)…of prohibition, in which she sought the recu-sal of the trial judge, does not make her the prevailing party in the litigation. She merely prevailed on one aspect of the proceeding which did not involve the merits. See Allstate Ins. Co. v. de la Fe, 647 So. 2d 965 (Fla. 3d DCA 1994). Normally, unless there are separate and distinct claims which would support independent actions, there will only be one prevailing party in litigation. Reinhart v. Miller, 548 So. 2d 1176 (Fla. 4th DCA 1989). When a party moves…
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Brass & Singer, P.A. v. United Auto. Ins. Co., 919 So. 2d 473 (Fla. 3d DCA 2005)…trial, our long-standing interpretation of section 627.428 is to enter an order conditionally granting appellate attorney's fees, contingent on the insured being the prevailing party at the conclusion of the case. See Allstate Ins. Co. v. De La Fe, 647 So. 2d 965 (Fla. 3d DCA 1994).…
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A. Carlo Guadagno, D.C., P.A. v. United Auto. Ins. Co., 88 So. 3d 246 (Fla. 3d DCA 2011)…ssential requirements of law. See Ramirez v. United Auto. Ins. Co., 67 So. 3d 1174 (Fla. 3d DCA 2011); Comprehensive Health Center, LLC v. United Auto. Ins. Co., — So. 3d —, 2011 WL 2848667 (Fla. 3d DCA 2011); Allstate Insurance Company v. De La Fe, 647 So. 2d 965 (Fla. 3d DCA 1994). The order denying motion for appellate attorney’s fees is quashed and this cause is remanded to the circuit court for entry of an order conditionally granting petitioner’s motion for appellate attorney’s fees. Petition grante…
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
- Segelstrom v. Blue Shield OF Fla., Inc., 233 So. 2d 645 (Fla. 2d DCA 1970)
- State Farm Mut. Auto. Ins. Co. v. Cedolia, 571 So. 2d 1386 (Fla. 4th DCA 1990)
- Concrete Structures, Inc. v. SPC Holdings, Inc., 638 So. 2d 628 (Fla. 3d DCA 1994)
- Michael KEY, D.O. v. Angrand, 638 So. 2d 628 (Fla. 3d DCA 1994)
- DE LA FE v. Allstate Ins. Co., 600 So. 2d 576 (Fla. 3d DCA 1992)
- Antwyon Oliver McTEAR v. State, 600 So. 2d 576 (Fla. 4th DCA 1992)