INDEMNITY INSURANCE COMPANY OF NORTH AMERICA A/S/O UNIDAS SYSTEMS, INC., APPELLANT/CROSS-APPELLEE,
v.
LLOYD CHAMBERS AND TETRA PAK, INC., APPELLEES/CROSS-APPELLANTS
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Indemnity Insurance Company appealed attorney's fees and expert witness fees awards in a subrogation case where it sued Tetra Pak and Lloyd Chambers for damages paid on behalf of its insured. The court affirmed fees for Tetra Pak but reversed the award to Chambers, holding that the rental contract's prevailing party fee clause did not apply to subrogation claims for personal injury and property damages.
The court affirmed the award of attorney's fees and expert witness fees to Tetra Pak under section 57.105(1) because no justiciable issue of fact or law existed when Indemnity filed suit. The court reversed the award of attorney's fees to Chambers, holding that the rental contract's prevailing party fee clause applied only to collection of charges under the agreement, not to subrogation claims for personal injury or property damages.
[1] A trial court may award attorney's fees under section 57.105(1), Florida Statutes, when no justiciable issue of fact or law exists at the time suit is filed.
[2] Expert witness fees incurred in establishing the reasonableness of attorney's fees may be awarded.
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“Upon granting Tetra Pak's motion to dismiss with prejudice, the trial court found that Tetra Pak was entitled to attorney's fees under section 57.105(1), Florida Statutes, based on its finding that no justiciable issue of fact or law existed when Appellant filed suit against Tetra Pak.”
Establishes the basis for awarding attorney's fees to Tetra Pak—that Indemnity's suit lacked any justiciable basis.
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Join FLexlaw to unlock all legal intelligenceUnidas Systems paid for personal injury and property damages caused by Lloyd Chambers in a car rented from Unidas. Indemnity, as Unidas's insurer, fil…
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STONE, C.J.
Indemnity Insurance Company appeals an award of attorney’s fees and expert witness fees in favor of Tetra Pak, Inc. and attorney’s fees in favor of Lloyd Chambers. We affirm the award of attorney’s fees and expert witness fees as to Tetra Pak, reverse the award of attorney’s fees as to Chambers, and declare all other points on appeal and cross-appeal moot.
The cause of action below was based on payment made by Unidas, Indemnity’s insured, for personal injury and property damages caused by Chambers in a car rented from Unidas. Indemnity filed a subrogation claim against Chambers and also sued Tetra Pak as his employer. The evidence showed that while Chambers was employed by Tetra Pak when the instant lawsuit was filed, he was neither employed by, nor acting within the scope of employment for, Tetra Pak at the time of the car rental and collision. Moreover, Indemnity had been apprised of that fact at the time it filed suit against Tetra Pak.
Upon granting Tetra Pak’s motion to dismiss with prejudice, the trial court found that Tetra Pak was entitled to attorney’s fees under section 57.105(1), Florida Statutes, based on its finding that no justiciable issue of fact or law existed when Appellant filed suit against Tetra Pak. The trial judge also awarded Tetra Pak its expert witness fees incurred in establishing the reasonableness of its attorney’s fees.
We find ample record support for the trial court’s award of attorney’s fees to Tetra Pak, see L.L. v. Zipperer, 484 So. 2d 92 (Fla. 5th DCA 1986), and, therefore, find no abuse of discretion. See Transflorida Bank v. Miller, 576 So. 2d 752 (Fla. 4th DCA 1991). We also affirm the award of expert witness fees, Appellant having conceded the authority of Travieso v. Travieso, 474 So. 2d 1184 (Fla.1985).
Indemnity voluntarily dismissed its complaint against Chambers, and the trial judge awarded attorney’s fees to Chambers based on Florida Rules of Civil Procedure 1.420(d) and section 57.105(2), Florida Statutes. In a voluntary dismissal, the trial court has jurisdiction to award attorney’s fees as costs to the prevailing party where authorized by a contract between the parties. See Stuart Plaza, Ltd. v. Atlantic Coast Dev. Corp. of Martin County, 493 So. 2d 1136 (Fla. 4th DCA 1986). Section 57.105(2) renders bilateral a unilateral contractual clause for prevailing party attorney’s fees.
We hold that the trial court erred in determining that the provision for prevailing party attorney’s fees in the underlying rental contract included attorney’s fees incurred in the event of liability for personal or property damage. The contract provided for attorney’s fees for collection of charges due under the agreement; the term “charges,” in this contract, clearly did not include costs of reimbursement for personal injury or property damages caused by the renter. We find no merit in Chambers’ contention that Indemnity has taken inconsistent positions in this litigation with respect to attorney’s fees and should, therefore, be estopped from arguing the inapplicability of the prevailing party attorney’s fee clause. We deem Montero v. Compugraphic Corp., 531 So. 2d 1034 (Fla. 3d DCA 1988), where a defendant in a contract action was estopped from denying the existence of contract relying on the same contract for a shortened limitation of action period, inapposite. We recognize that Appellant initially pled entitlement to attorney’s fees under the contract; however, the complaint was voluntarily dismissed. Hence, the claim for attorney’s fees was dropped before its applicability was tested. Furthermore, Appellant was required to plead entitlement to attorney’s fees at the pleading stage or waive its claim, see Green v. Sun Harbor Homeowner’s Ass’n, Inc., 730 So. 2d 1261 (Fla. 1998); Appellee bore no such requirement. Thus, we conclude that principles of fundamental fairness would be subverted if attorney’s fees were awarded under a clause that clearly did not provide for them merely because of Appellant’s initial, and later voluntarily dismissed, prayer. Accordingly, the final judgment for attorney’s and expert witness fees awarded to Tetra Pak is affirmed, and the final judgment for attorney’s fees as to Chambers is reversed.
WARNER and GROSS, JJ., concur.
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Fla. Hurricane Prot. & Awning, Inc. v. Ethlyn Pastina, 43 So. 3d 893 (Fla. 4th DCA 2010)…it gave: the ability to recover fees in litigation arising under these contractual provisions.” Id. at 1283. The statute renders “bilateral a unilateral contractual clause for prevailing party attorney’s fees.” Indem. Ins. Co. of N. Am. v. Chambers, 732 So. 2d 1141, 1143 (Fla. 4th DCA 1999); see also Holiday Square Owners Ass’n, Inc. v. Tsetsenis, 820 So. 2d 450, 453 (Fla. 5th DCA 2002) (holding fee provision becomes bilateral under section 57.105(7), “even though solely in a defensive posture.”) Simply put,…1 / 2
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Merchs. Bonding Co. (Mutual) v. City OF Melbourne, 832 So. 2d 184 (Fla. 5th DCA 2002)…h connection, including attorney’s fees and costs in any appeals. Section 57.105(2) renders bilateral, a unilateral contract clause for prevailing party attorney’s fees, such as the one quoted above. Indemnity Ins. Co. of North America v. Chambers, 732 So. 2d 1141 (Fla. 4th DCA 1999).1 Because of its suretyship position, Merchants argues it is entitled to the benefit of the attorney’s fee provision in the contract between the City and Continental. By failing to dispute this- claim on appeal, [*186] the City…
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Adrianna Mihalyi v. Lasalle Bank, N.A., 162 So. 3d 113 (Fla. 4th DCA 2014)…the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract. The statute makes a unilateral contract clause for attorney’s fees bilateral in effect. Indem. Ins. Co. of N. Am. v. Chambers, 732 So. 2d 1141, 1143 (Fla. 4th DCA 1999). Assuming the request for attorney’s fees is properly pled, “[t]he award is mandatory, once the lower court determines that a party has prevailed.” Holiday Square Owners Ass’n v. Tsetsenis, 820 So. 2d 450, 453 (Fla. 5th DCA…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Travieso v. Travieso, 474 So. 2d 1184 (Fla. 1985)
- Green v. SUN Harbor Homeowners' Ass'n, Inc., 730 So. 2d 1261 (Fla. 1998)
- Stuart Plaza, Ltd. v. Atl. Coast Dev. Corp. OF Martin Cnty., 493 So. 2d 1136 (Fla. 4th DCA 1986)
- Transflorida Bank v. Miller, 576 So. 2d 752 (Fla. 4th DCA 1991)
- Labrada v. State, 531 So. 2d 1034 (Fla. 3d DCA 1988)
- Montero v. Compugraphic Corp., 531 So. 2d 1034 (Fla. 3d DCA 1988)
- L.L. v. Zipperer, 484 So. 2d 92 (Fla. 5th DCA 1986)