GONZALO A. CHACIN, PETITIONER,
v.
GENERALI ASSICURAZIONI GENERALI SPA, RESPONDENT
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The Florida District Court of Appeal quashed a county court's denial of attorney's fees to an insured in a bad faith insurance claim against a surplus lines insurer, holding that section 627.428 permits attorney's fees regardless of the insurer's status as a non-admitted carrier.
An award of attorney's fees under section 627.428 is proper in an action against a surplus lines insurer that complies with the regulatory requirements, as section 627.428 applies to all insurers regardless of whether they are admitted or non-admitted carriers.
[1] A surplus lines insurer is not exempt from statutory provisions allowing for the award of attorney's fees to an insured who obtains a judgment against the insurer.
[2] An insured who obtains a judgment against a surplus lines insurer is entitled to attorney's fees under section 627.428, Florida Statutes.
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Statement of the county court's reasoning that was rejected on appeal
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Join FLexlaw to unlock all legal intelligenceGonzalo Chacin, an insured, sought attorney's fees under section 627.428, Florida Statutes, in an action against Generali Assicurazioni Generali S.p.A…
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SCHWARTZ, Chief Judge.
The appellate division of the circuit court affirmed the county court’s denial of the plaintiff-insured’s application for attorney’s fees under section 627.428, Florida Statutes (1993) on the ground that section 626.912, Florida Statutes (1993) “precludes the award of attorney [sic] fees against a surplus lines insurer” like the carrier involved in this case. We quash the decision and mandate reversal of the county court on the authority of English & American Insurance Co. v. Swain Groves, Inc., 218 So. 2d 453 (Fla. 4th DCA 1969), which is squarely in point and with which we agree:
The final question involved the propriety of the award of attorney’s fees where the non-admitted carriers complied with Section 626.0509, F.S.1965, F.S.A. [now § 626.912, Fla.Stat. (1993) ]. Appellants [sic] argument is that an attorney’s fee is allowed in an action against an unauthorized foreign insurer only under the provi sions of Section 626.0508, F.S.1965, F.S.A., [now § 626.911, Fla.Stat. (1993) ] but that Section 626.0509 F.S.1965, F.S.A. specifically exempts therefrom an action against an unauthorized insurer arising out of a contract of insurance issued under the surplus lines law under certain conditions [which existed in the instant case]. We pretermit a determination of whether appellants were exempt from Section 626.0508, F.S.1965 by holding that the appellants were within the scope of Section 627.0127, F.S.1965, F.S.A., [now § 627.428, Fla.Stat. (1993) ] [which provides for the award of attorney’s fees upon rendition of a judgment against an insurer in favor of an insured].
English & Am. Ins. Co., 218 So. 2d at 458. Certiorari granted.
NESBITT, J., concurs.
COPE, Judge
(concurring).
I join the majority opinion and would add that in my view this result also follows from the terms of section 626.925, Florida Statutes (1993).
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Essex Ins. Co. v. Zota, 985 So. 2d 1036 (Fla. 2008)…appears in part I of chapter 627; rather, sections 627.421 and 627.428 appear in part II of that chapter.8 See §§ 627.421 (“Delivery of policy”), 627.428 (“Attorney’s fees”), Fla. Stat. (2003); see also Chacin v. Generali Assicurazioni Generali Spa, 655 So. 2d 1162, 1162-63 (Fla. 3d DCA 1995) (holding that attorney’s fees are awardable against surplus-lines insurers under section 627.428). B. The Significance of Sections 626.922 and 627.421 Having reaffirmed Manaure V and its explanation of the scope of sect…
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Essex Ins. Co. v. Zota, 466 F.3d 981 (11th Cir. 2006)…“This chapter does not apply to ... surplus lines insurance placed under the provisions of §§ 626.913-626.937.” In 1995 the same intermediate appellate court was presented with the same question. See Chacin v. Generali Assicurazioni Generali Spa, 655 So. 2d 1162 (Fla. 3d DCA 1995). In answering the question the same way it had in English before the amendment, the court’s only discussion was to block quote the relevant portion of the English decision. See id. at 1162. It did not mention the amendment to §…
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Underwriters at Lloyd's London v. Osting-Schwinn, 545 F. Supp. 2d 1261 (M.D. Fla. 2008)…s. See Essex Ins. Co. v. Zota, 466 F.3d 981, 990 (11th Cir.2006) (certifying to the Florida Supreme Court, inter alia, “whether Fla. Stat. § 627.428 applies to surplus line insurers”); Chacin v. Generali Assicurazioni Generali Spa, 655 So.2d 1162, 1162 (Fla. 3d DCA 1995) (relying on the 4th DCA’s decision in English to hold that Fla. Stat. § 627.428 applies to surplus line insurers); English & Am. Ins. Co. v. Swain Groves, 218 So.2d 453, 458 (Fla. 4th DCA 1969) (holding that Fla.…
Authorities Cited
- English & Am. Ins. Co. Ltd. v. Swain Groves, Inc., 218 So. 2d 453 (Fla. 4th DCA 1969)