JOSE DE LEON, APPELLANT,
v.
GREAT AMERICAN ASSURANCE COMPANY, APPELLEE

Fla. 3d DCA | 2011-10-12
No. 3D09-646
Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
78 So. 3d 585 Florida District Court of Appeal, Third District (2011) Positive Treatment
Cited by 6 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

De Leon appealed the denial of attorney's fees under Florida Statute 627.428 after an insurance company settled his property damage claim for the full amount demanded. The trial court denied fees based on the claim being premature, but the appellate court reversed, holding that the insured was forced to litigate because the insurer improperly used a sworn statement examination to ask intrusive, impertinent questions unrelated to the claim.


Holding

The appellate court reversed and remanded, holding that De Leon is entitled to attorney's fees because he was reasonably forced to litigate to recover valid benefits. The insurer's improper conduct during the sworn statement examination—asking wholly impertinent questions about an unrelated criminal conviction and personal living arrangements—justified De Leon's refusal to continue and made litigation necessary.


Headnotes

[1] An insurer's post-suit payment of policy proceeds entitles the insured to attorney's fees under section 627.428, Florida Statutes, where the insurer wrongfully caused its…

[2] An insured is entitled to attorney's fees under section 627.428, Florida Statutes, when it was reasonably necessary for the insured to litigate in court to obtain policy…

Previewing 2 of 5 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

Key Quotes

“So far from being improperly employed, the statute was enacted for the very purpose presented by this case — to discourage the games insurance companies play.”

Establishes that the statute's core purpose is to prevent insurers from using procedural tactics to avoid paying valid claims

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

De Leon's insured truck was stolen and recovered with damage, including nine missing valuable tires. When De Leon filed a claim with Great American As…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
SCHWARTZ, Senior Judge.

*586SCHWARTZ, Senior Judge.

This is an appeal from an order denying attorney’s fees under section 627.428 Florida Statutes (2008), in an action for property loss benefits provided by an automobile insurance policy. The ruling, which was entered even though the insurer settled the case for the full amount claimed, was based on the notion that the action had been premature and unnecessary and was thus not effective in securing the favorable result. See JPG Enterprises, Inc. v. Viterito, 841 So.2d 528, 530 (Fla. 4th DCA 2003) (“A prevailing party is entitled to recover only fees which are ‘reasonably expended.’ Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145, 1151 (Fla.1985).”); State Farm Florida Ins. Co. v. Lorenzo, 969 So.2d 393, 398 (Fla. 5th DCA 2007) (“Courts generally do not apply the confession-of-judgment doctrine, which supports awarding attorney fees under statute governing award of fees to insureds in insurance coverage actions, where the insureds were not forced to sue to receive benefits; applying the doctrine would encourage unnecessary litigation by rewarding a race to the courthouse for attorney fees even where the insurer was complying with its obligations under the policy.”); Garcia v. Lumbermens Mut. Ins. Co., 246 So.2d 574, 574 (Fla. 3d DCA 1971) (“[I]nterest and attorneys’ fees will not be awarded where there is no necessity to institute suit to confirm or collect an arbitration award under an uninsured motorist provision in an automobile liability policy.”). This conclusion was in turn based on the finding that the insured had improperly refused to submit to and complete an appropriate and contractually required pre-suit examination under oath. See Lorenzo, 969 So.2d 393 (finding fees improper where insured sued without complying with policy conditions). We disagree with the result below and the premise upon which it was based and therefore reverse.1

The controversy began when someone stole a truck owned by De Leon and insured by Great American. When it was recovered, it had been damaged and, most significantly, was missing nine large, valuable tires. As shown by Great American’s payment of the entire claim, there was never a legitimate defense under the personal property section of his policy. Unfortunately, however, the carrier apparently decided to use the usual policy provision requiring a sworn statement as a license to make unwarranted and intrusive inquiries into the personal life of an insured who had the temerity to make a claim against it. At the statement, where De Leon appeared without counsel, Great American’s lawyer, Luis A. Diz, did not even get to the truck and the tires. Instead, he insisted on probing into the details of, among other things, a prior, totally unrelated criminal conviction,2 and the person with whom the *588claimant was then living.3

With complete justification, De Leon de-*589dined to answer most of these questions, even though Diz specifically warned him that he was jeopardizing his insurance coverage and invited him to withdraw his claim in lieu of responding.4 In fact De *591Leon told Diz that if he continued on that track, he would leave, get an attorney, and see him in court.5 Diz did not desist. He persisted. True to his word, De Leon got a lawyer and filed suit.

The appellee’s position is based on the argument that

De Leon’s refusal to complete the examination and provide the requested documents prevented Great American from exercising its contractual right to fully investigate his claim.

This is completely wrong; because De Leon “refused” to respond to wholly impertinent and improper questions which had nothing to do with the merits of the claim. And we think he was right to do so. To hold in these circumstances, as did the trial court, that it was not necessary to file the action and thus that section 627.428 is inapplicable, is to turn reality upon its head. What actually happened is that De Leon took Diz up on his challenge (and the propriety of his conduct of the sworn statement) and sued the company because, as was obvious, there was no other way to be paid. So far from being improperly employed, the statute was enacted for the very purpose presented by this case — to discourage the games insurance companies play. See Beverly v. State Farm Florida Ins. Co., 50 So.3d 628, 633 (Fla. 2d DCA 2010) (“[A]n insurer’s post-suit payment of additional policy proceeds entitles the insured to section 627.428 attorney’s fees where the insurer ‘wrongfully caus[ed] its insured to resort to litigation in order to resolve a conflict with its insurer when it was within the company’s power to resolve it.’ See Clifton [v. United Cas. Ins. Co. of Am., 31 So.3d 826, 829 (Fla. 2d DCA 2010)] (citing First Floridian Auto & Home Ins. Co. v. Myrick, 969 So.2d 1121, 1124 (Fla. 2d DCA 2007)); see also Hill, [v. State Farm Florida Insurance Co., 35 So.3d 956, 960-61 (Fla. 2d DCA 2010)]; Goff, [v. State Farm, Florida Insurance Co., 999 So.2d 684, 688 (Fla. 2d DCA 2008) ].”); see also Pepper’s Steel & Alloys, Inc. v. U.S., 850 So.2d 462, 465 (Fla.2003) (“[t]he statute’s [section 627.428] purpose ‘is to discourage insurance companies from contesting valid claims, and to reimburse insureds for their attorney’s fees incurred when they must enforce in court their contract with the insurance company.’ Bell v. U.S.B. Acquisition Co., 734 So.2d 403, 411 n. 10 (Fla.1999).”); New York Life Ins. Co. v. Leeks, 122 Fla. 127, 165 So. 50, 54 (1935); Underwood Anderson & Associates, Inc. v. Lillo’s Italian Restaurant, Inc. 36 So.3d 885, 888 (Fla. 1st DCA 2010) (“[T]he courts have often stated to be the purpose of the attorney’s fee statute, which is to encourage insurance companies to pay when they are presented with valid claims and, failing that, to compensate insureds that are forced to litigate their contracts with improperly recalcitrant insurance companies.”).

We cannot permit Great American to escape the consequences of what it tried to get away with in this case. Because the *592rule that any success in an action on an insurance policy, let alone the full payment of the asserted claim, requires an award of fees, see Pineda v. State Farm Fla. Ins. Co., 47 So.3d 890, 892 (Fla. 3d DCA 2010) (“An insured is entitled to attorney’s fees under 627.428, Florida Statutes, where it was reasonably necessary for the insured to litigate in court .... ”), applies in spades in this case, the order under review is reversed and the cause is remanded with directions to make an appropriate award of attorney’s fees.

Reversed and remanded.

SHEPHERD, J.,

concurring.

This court recently admonished “all counsel” who practice in the courts of this state that “improper conduct” in the courtroom “will not be condoned by this court.” Chin v. Caiaffa, 42 So.3d 300, 311-12 (Fla. 3d DCA 2010) (emphasis added). This case involves conduct outside the courtroom, stemming from the theft of a 2000 Freight-liner “eighteen wheeler” commercial truck from the premises of an interstate trucking company where it was parked. The police found the vehicle the next day. The insured’s principal claim is that the thieves took ten expensive tires from the truck and replaced them with then-inferior tires. After suit was filed, the trial court abated the action and ordered completion of the previously begun examination under oath (EUO). The same lawyer who conducted the first aborted EUO conducted the second. It lasted over seven hours. It strains credulity to assert — as the insurer does in this case — that a seven-hour sworn statement of a single individual is necessary to the investigation of an $8000 tire loss claim, whatever might be the insurer’s suspicions. “Over-lawyering” is a frequent affliction found in the legal profession. If there is any question concerning whether the insured’s instincts about the interrogator’s purpose was any different in the second EUO than in the first, the doubt can be dispelled easily by reviewing the transcript of the latter EUO.

An attorney is an officer of the court, and he plays his role badly, even outside the courtroom, if he trespasses against the obligations of his professional responsibilities. See Georgopoulos v. Int’l Bhd. of Teamsters, AFL-CIO, 942 F.Supp. 883, 905 (S.D.N.Y.1996). A careful review of the transcript of the second EUO reveals the role played by counsel during that EUO was performed just like the first— badly. As in the first EUO, counsel’s misunderstanding of the permissible range of inquiry in a sworn statement taken to verify a simple theft loss, whatever might have been the insurer’s suspicions, was palpable. Upon a review of the entire record, it now is undeniable, in my estimation, that— although it should have been — the insured’s claim in this case was not resolvable absent judicial intervention.

With these additional observations, I fully join in the well-reasoned opinion of the court.

Concurrence
SHEPHERD, J.,

SHEPHERD, J.,

concurring.

This court recently admonished “all counsel” who practice in the courts of this state that “improper conduct” in the courtroom “will not be condoned by this court.” Chin v. Caiaffa, 42 So. 3d 300, 311-12 (Fla. 3d DCA 2010) (emphasis added).

This case involves conduct outside the courtroom, stemming from the theft of a 2000 Freight-liner “eighteen wheeler” commercial truck from the premises of an interstate trucking company where it was parked. The police found the vehicle the next day. The insured’s principal claim is that the thieves took ten expensive tires from the truck and replaced them with then-inferior tires. After suit was filed, the trial court abated the action and ordered completion of the previously begun examination under oath (EUO).

The same lawyer who conducted the first aborted EUO conducted the second. It lasted over seven hours. It strains credulity to assert — as the insurer does in this case — that a seven-hour sworn statement of a single individual is necessary to the investigation of an $8000 tire loss claim, whatever might be the insurer’s suspicions. “Over-lawyering” is a frequent affliction found in the legal profession. If there is any question concerning whether the insured’s instincts about the interrogator’s purpose was any different in the second EUO than in the first, the doubt can be dispelled easily by reviewing the transcript of the latter EUO.

An attorney is an officer of the court, and he plays his role badly, even outside the courtroom, if he trespasses against the obligations of his professional responsibilities. See Georgopoulos v. Int’l Bhd. of Teamsters, AFL-CIO, 942 F.Supp. 883, 905 (S.D.N.Y.1996).

A careful review of the transcript of the second EUO reveals the role played by counsel during that EUO was performed just like the first— badly. As in the first EUO, counsel’s misunderstanding of the permissible range of inquiry in a sworn statement taken to verify a simple theft loss, whatever might have been the insurer’s suspicions, was palpable. Upon a review of the entire record, it now is undeniable, in my estimation, that— although it should have been — the insured’s claim in this case was not resolvable absent judicial intervention.

With these additional observations, I fully join in the well-reasoned opinion of the court.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Johnson v. Omega Ins. Co., 200 So. 3d 1207 (Fla. 2016)
    …reto v. United Servs. Auto. Ass’n, 82 So. 3d 159, 162 (Fla. 4th DCA 2012) (“Here, because the insurer paid the full amounts claimed only after suit was filed, it essentially confessed judgment.”) (emphasis supplied); De Leon v. Great Am. Assur. Co., 78 So. 3d 585, 591-92 (Fla. 3d DCA 2011) (“[A]ny success- in an action on an insurance policy, let alone the full payment of the asserted claim, requires an award of fees.”); Goff v. State Farm Fla. Ins. Co., 999 So. 2d 684, 688 (Fla. 2d DCA 2008) (policyholder w…
  • Whistler's Park, Inc. v. The Fla. Ins. Guar., 90 So. 3d 841 (Fla. 5th DCA 2012)
    …his power, combined with the promise of forfeiture if the insured is not compliant, has had predictable results, an example of which can be seen in the recent decision of the Third District Court of Appeal in De Leon v. Great American Assurance Co., 78 So. 3d 585 (Fla. 3d DCA 2011). There, the court concluded that the insurer took advantage of its contractual right to conduct an EUO by “unwarranted” and “intrusive” EUO questioning that the court found to be impertinent, improper and irrelevant to the claim.…
  • Spencer v. EMC Mortg. Corp., 97 So. 3d 257 (Fla. 3d DCA 2012)
    …law is the law. Notwithstanding the distasteful consequences of applying it in this case, it must be served. . In the first incarnation, this passage read “I feel that I must dissent from the affirmance. ...” See De Leon v. Great Am. Assurance Co., 78 So. 3d 585, 586 n. 1 (Fla. 3d DCA 2011). . The present action is the second attempt to foreclose the mortgage. The first case was in fact dismissed for lack of prosecution. (This case demonstrates the exquisite accuracy of the acronym [f]or [l]ack [o]f [p]ros…

Authorities Cited (18 total)

View all 18 cited authorities →

Full citator, related cases, and AI research tools

Open in FLexlaw