ALLSTATE INSURANCE COMPANY, APPELLANT,
v.
DAVE LEE JENKINS, APPELLEE

Fla. 5th DCA | 2010-03-19
No. 5D08-4164
ORFINGER and EVANDER, JJ., concur.
32 So. 3d 163 Florida District Court of Appeal, Fifth District (2010) Positive Treatment
Cited by 18 cases

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Holding

The court affirmed the final judgment on the jury's verdict but dismissed the appeal of the attorney's fee order, deeming it non-final and non-appealable.


Headnotes

[1] An order awarding attorney's fees is not a final appealable order until both entitlement and the amount of fees are determined.

[2] A claim for statutory attorney's fees based on a demand for settlement does not accrue until the completion of the initial action and cannot be revived by a subsequent ba…

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Facts & Procedural History

Following a jury verdict in an uninsured motorist coverage lawsuit, the plaintiff sought attorney's fees based on a prior settlement demand. The trial…

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Opinion of the Court
PALMER, J.

PALMER, J.

In this uninsured motorist coverage lawsuit, Allstate Insurance Company (Allstate) appeals the final judgment entered by the trial court on the jury’s verdict in favor of Dave Jenkins. Finding no reversible error in the final judgment, we affirm without further discussion. Allstate also appeals the trial court’s order conditionally awarding Jenkins attorney’s fees pursuant to his demand for settlement filed below. That order is not a final appealable order; therefore, this court lacks the legal authority to review it at the present time.

At the close of the trial below, a verdict was entered in Jenkins’ favor in the combined total of $119,237.99. The parties agree that, after set-offs, the net verdict was $94,717.59.

Jenkins filed a motion for attorney’s fees pursuant to section 768.79 of the Florida Statutes (2005) based on Jenkins’ previously filed demand for settlement in which he offered to settle his uninsured motorist claims for the combined policy limits of $75,000.00. The motion stated that a fee award would be warranted provided that the net judgment totaled $93,750.00.

Jenkins thereafter filed a motion seeking leave to amend his complaint to set forth a statutory claim of bad faith against Allstate. See §§ 624.155; 627.727(10), Fla. Stat. (2005). The trial court granted the motion, but abated resolution of the bad faith claims pending resolution of the instant appeal.

The trial court then entered a partial final judgment. The court reduced the net verdict to the available uninsured motorist policy limits of $75,000.00, and then added in an award of costs in the amount of $15,968.33, for a net judgment of *165$90,968.38. In its order, the trial court expressly reserved jurisdiction to determine any and all statutory bad faith claims.

On the same day, the trial court entered a separate order awarding Jenkins attorney’s fees in the amount of $200,723.75. However, the court ruled that, pursuant to the law as expressed in Allstate Insurance Company v. Sutton, 707 So.2d 760 (Fla. 2d DCA 1998), the award was

contingent upon, and shall not be executed until, a judicial finding of bad faith on the part of the Defendant, ALLSTATE INSURANCE COMPANY. This court, or any court presiding over the Plaintiffs related bad faith claims, shall provide for Entry of Final execution of this Final Judgment once it has been judicially determined that ALLSTATE INSURANCE COMPANY acted in bad faith.

Allstate challenges this ruling arguing that the trial court’s reliance on Sutton was misplaced. This court lacks the authority to review this claim of error at this time because the trial court’s attorney’s fee order constitutes a non-final, non-ap-pealable order.

To that end, the law is well-settled that an attorney’s fee award is not appeal-able until both the issues of entitlement and amount are ruled upon. Here, because the issue of Jenkins’ entitlement to recover his claim for statutory fees is contingent upon future events occurring in the still pending bad faith litigation, the attorney’s fee award is not final, and thus, not reviewable. See State, Dept. of Highway Safety and Motor Vehicles v. Trauth, 971 So.2d 906, 908 (Fla. 3d DCA 2007)(holding that an attorney’s fee award does not become final, and therefore appealable, until the amount of fees is set); Mills v. Martinez, 909 So.2d 340, 342 (Fla. 5th DCA 2005)(explaining that an order determining entitlement to attorney’s fees was not a final order despite being included in a final judgment because an award of attorney’s fees does not become final, and, therefore, appealable until the amount is set by the trial court).

Jenkins has filed with this court a motion for a conditional award of appellate attorney’s fees, seeking an award of attorney’s fees under section 768.79 of the Florida Statutes (2005) conditioned upon his recovery of a judgment sufficiently exceeding the amount of his demand for settlement. As an additional ground for an award of appellate attorney’s fees, Jenkins cites to section 624.155 of the Florida Statutes (2005), which authorizes the recovery of attorney’s fees by a successful plaintiff in a bad faith action. We deny the motion on both grounds.

With regard to the demand for settlement statutory fee request, the net judgment rendered in this action did not rise to the level necessary to entitle Jenkins to recover such fees. The trial court’s decision to allow the bad faith claim in a supplemental proceeding in this action, rather than as a separate action, cannot revive Jenkins’ claim for attorney’s fees under his demand for settlement. The bad faith action is a separate and distinct cause of action, which did not accrue until completion of the initial action and thus cannot be used to obtain attorney’s fees under the demand for settlement filed in the initial action. Although Sutton appears to allow for a subsequent bad faith action to be brought in the original proceeding (a practice which creates an abundance of problems), the bad faith action is more appropriately brought as a separate cause of action.

Similarly, the request for a conditional award of appellate attorney’s fees under the bad faith statute is denied. The in*166stant appeal was from the initial action, not from the subsequent bad faith action. If Jenkins is ultimately successful on his claim of bad faith, he will be entitled to seek recovery of statutory attorney's fees as part of the damages in that suit.

AFFIRMED.

ORFINGER and EVANDER, JJ., concur.


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Citator

Cited By

  • Safeco Ins. Co. OF Ill. v. Fridman, 117 So. 3d 16 (Fla. 5th DCA 2013)
    …judgment against the insurer may not exceed the policy limits. Nationwide Mut. Fire Ins. Co. v. Voigt, 971 So. 2d 239, 242 (Fla. 2d DCA 2008). A first party bad faith action is a separate and distinct cause of action. Allstate Ins. Co. v. Jenkins, 32 So. 3d 163, 165 (Fla. 5th DCA 2010). In contrast to a claim for UM benefits, an insured who prevails on a bad faith claim may recover damages in excess of the policy limits. In the instant case, the only cause of action before the trial court was Frid-man’s U…
  • Ness v. Martinez, 249 So. 3d 754 (Fla. 1st DCA 2018)
    …rd to Appellant’s challenge to the court’s ruling on attorney’s fees and costs, an appellate court lacks jurisdiction to review an attorney’s fees award “until both the issues of entitlement and amount are ruled upon.” Allstate Ins. Co. v. Jenkins, 32 So. 3d 163, 165 (Fla 5th DCA 2010); see also Magnolia Fla. Tax Certificates v. Alexa1, 229 So. 3d 1288 (Fla. 1st DCA 2017). Here, the lower court reserved jurisdiction to determine Appellee’s request for attorney’s fees, but did not rule on the amount. Accor…
  • Gov't Emps. Ins. Co. v. King, 68 So. 3d 267 (Fla. 2d DCA 2011)
    …2 So. 2d 1003, 1004-05 (Fla. 4th DCA 2001). Although the concept of a contingent judgment may have seemed like a good idea in Sutton, it presents many difficulties. A contingent judgment is not an appealable order. See Allstate Ins. Co. v. Jenkins, 32 So. 3d 163, 165 (Fla. 5th DCA 2010). Moreover, in Sutton for example, [*270] there is no reason to believe that the federal court would have concluded that it was bound by the state court’s premature determination of fees in the subsequent bad faith action. Ob…

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