JAMES FURNITURE MANUFACTURING COMPANY, INC., A FLORIDA CORPORATION, AND PAUL ROSEN, APPELLANTS,
v.
MARYLAND CASUALTY COMPANY, A CORPORATION, APPELLEE
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The court held that the insurer's suit for a declaratory judgment of non-liability, which resulted in a decree establishing its obligation under the policy, triggered the statutory provision for attorney fees for the insureds.
An insurer filed a declaratory judgment action seeking to avoid liability under a policy after its insureds were found liable in an underlying automob…
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A negligence action arising out of an automobile accident resulted in a judgment for one Johnny Timmons against James Furniture Manufacturing Company, Inc., and Paul Rosen. The furniture company was the owner of the motor vehicle involved in the accident. Rosen was operating the vehicle at the time, in the course of his employment by the furniture company. Maryland Casualty Company was the insurer on an automobile liability insurance policy issued to the furniture company.
The appellee Maryland Casualty Company filed a proceeding in the circuit court against those insured and the judgment creditor, contending for and seeking to have the court decree its non-liability under the policy. The court decreed otherwise, holding that the insurer was obligated to pay the judgment which had been rendered against the furniture company and Rosen, but refusing to allow attorney fees to defendants.1 This appeal challenges that ruling on the attorney fees.
*723Provision is made by statute for allowance of attorney fees upon the granting of a judgment or decree against “any insurer in favor of the beneficiary under any policy or contract of insurance executed by such insurer.” 2
Here the insurer filed suit on the policy in the circuit court. It sought a decree declaring that the insurer was not liable under the policy. The insured and its driver, against whom a judgment for damages had been entered, and also the party holding the judgment against them, were required to defend the case, in which they ran the risk of losing the benefits of the policy. The court ruled in favor of the defendants, and established the obligation of the insurer under the policy. Under those circumstances the statute for the allowance of attorney fees was applicable.
The chancellor gave no reason in his decree for disallowing such fees. Appellants contend his refusal to do so disregarded the statute and was error. Appellee argues that the insured under an automobile liability policy should not be considered as the beneficiary of the policy, and further argues that attorney fees should not be allowed under the statute in this casé because the insurer was diligent in defending the automobile accident case, and did not refuse payment but chose to submit the question of its liability-to a court for decision, rather than to-wait for suit to be brought against it under the policy.
Those arguments of the appellee are not supportable under the applicable authorities, and we conclude that the learned' chancellor was in error in his refusal to> allow attorney fees. See Peninsular Life Ins. Co. v. Howard, Fla.1954, 72 So.2d 389; Continental Casualty Co. v. Giller Concrete Co., 5 Cir., 1940, 116 F.2d 431; Phoenix Indemnity Co. v. Anderson’s Groves, 5 Cir., 1949, 176 F.2d 246; American Fidelity & Casualty,Co. v. Greyhound Corp., 5 Cir., 1958, 258 F.2d 709, 717.
Accordingly the decree disallowing attorney fees is reversed, and the cause remanded with directions to allow reasonable attorney fees to the parties so entitled under the applicable statute.
Reversed and remanded.
HORTON, C. J., and PEARSON, JL„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Roberts v. Carter, 350 So. 2d 78 (Fla. 1977)…d be available, of course, whether the contracting insured brings or is required to defend a lawsuit with the insurance carrier. See Old Republic Ins. Co. v. Monsees, 188 So. 2d 893 (Fla. 4th DCA 1966). James Furniture Mfg. Co. v. Maryland Cas. Co., 114 So. 2d 722 (Fla. 3d DCA 1959), suggests the type of suit which an insured might be required to defend. The corporate insured in that case was allowed to recover attorney’s fees in a declaration suit brought by the carrier against its insured to contest coverag…
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Johnson v. Atl. Nat'l Ins. Co., 163 So. 2d 340 (Fla. 3d DCA 1964)…ion, Judge Cullen dismissed the complaint and denied appellant’s request for attorney’s fees. As pointed out in his opinion, this case is controlled by the decision of this court in James Furniture Mfg. Co., Inc. v. Maryland Cas. Co., Fla.App.1959, 114 So. 2d 722, at p. 723, wherein Judge Carroll, writing for the court said: “Here the insurer filed suit on the policy in the circuit court. It sought a decree declaring that the insurer was not liable under the policy. The insured and its driver, against whom…
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Travelers Ins. Co. v. Horton, 366 So. 2d 1204 (Fla. 3d DCA 1979)…greement of settlement. See Kendel v. Pontious, 244 So. 2d 543 (Fla. 3d DCA 1971). Further, an award of reasonable attorney’s fees in this declaratory action was not improper. James Furniture Manufacturing Company, Inc. v. Maryland Casualty Company, 114 So. 2d 722 (Fla. 3d DCA 1959); Section 627.428, Florida Statutes (1977). Accordingly, for the above reasons, the final judgment is affirmed. Affirmed.…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Am. Fid. & Cas. Co., Inc. v. The Greyhound Corp., 258 F.2d 709 (5th Cir. 1958)
- Phoenix Indem. Co. v. Anderson's Groves, Inc., 176 F.2d 246 (5th Cir. 1949)
- Cont'l Cas. Co. v. Giller Concrete Co., Inc., 116 F.2d 431 (5th Cir. 1940)
- Peninsular Life Ins. Co. v. Howard, 72 So. 2d 389 (Fla. 1954)