SUAREZ
v.
CITIZENS PROPERTY INS. CORP.
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Cristina Suarez appeals a judgment awarding Citizens Property Insurance Corporation attorney's fees as the prevailing party in an insurance contract dispute. The court affirmed the Insurer's entitlement to fees under Florida's offer-of-settlement statute but reversed and remanded the fee amount calculation.
The Insurer is entitled to attorney's fees because its settlement proposal complied with section 768.79 and the core claim was for breach of contract and money damages, not purely equitable relief. However, the Insurer may only recover attorney's fees actually incurred and paid from the date of the settlement proposal through the date of the order granting entitlement to fees.
[1] A settlement proposal under section 768.79, Florida Statutes, is not invalidated by a voluntary dismissal of a separate declaratory relief count when the primary claim in…
[2] Attorney's fees recoverable under section 768.79 following a compliant settlement proposal are limited to those fees actually incurred and paid by the prevailing party fr…
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Join FLexlaw to unlock all legal intelligence“the 'real issue' in the case was a claim for breach of contract and money damages”
Court's rejection of insured's argument that the declaratory relief count invalidated the settlement proposal
The Insured filed suit against the Insurer asserting claims for breach of contract and declaratory relief. The Insurer made a settlement proposal comp…
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Opinion filed May 8, 2019. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D18-1287 Lower Tribunal No. 15-2333 ________________ Cristina Suarez, Appellant, vs. Citizens Property Insurance Corporation, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Pedro P. Echarte, Jr., Judge. Marin, Eljaiek, Lopez & Martinez, and Steven E. Gurian and David F. Garcia, for appellant. Hinshaw & Culbertson, and Maureen G. Pearcy, for appellee. Before SALTER and LINDSEY, JJ., and LEBAN, Senior Judge. PER CURIAM.
On Partial Concession of Error
Cristina Suarez (the “Insured”) appeals a final judgment awarding the defendant, Citizens Property Insurance Corporation (the “Insurer”), attorney’s fees as the prevailing party in a circuit court lawsuit. We affirm as to entitlement to fees, as the Insurer’s proposal for settlement complied with section 768.79, Florida Statutes (2018), and the Florida Supreme Court’s holdings in Kuhajda v. Borden Dairy Co. of Alabama, LLC, 202 So. 3d 391, 395-96 (Fla. 2016).
We reject the Insured’s argument that her separate count for declaratory relief (voluntarily dismissed on the first day of trial) was a claim for purely equitable relief that invalidated the Insurer’s proposal for settlement. The trial court correctly determined that the “real issue” in the case was a claim for breach of contract and money damages. See Tower Hill Signature Ins. Co. v. Javellana, 238 So. 3d 372, 376-77 (Fla. 3d DCA 2017).
Based on the Insurer’s limited and proper concession of error, we reverse and remand that portion of the final judgment fixing the amount of attorney’s fees to be awarded to the Insurer. On remand, the Insurer shall only recover those attorney’s fees incurred and actually paid or payable to its attorneys by the Insurer, from service of the 2016 proposal for settlement through the date of the order granting entitlement to fees. See § 768.79(1), Fla. Stat. (2018); Reliance Mut. Life Ins. Co. of Ill. v. Booher, 166 So. 2d 222, 224 (Fla. 2d DCA 1964) (applying dictionary definition of “incurred”).
The final judgment is affirmed as to the Insurer’s entitlement to attorney’s fees, and (pursuant to the Insurer’s limited concession of error) reversed and remanded as to the amount of such fees to be awarded to the Insurer.
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Citator
Authorities Cited
- Susanne L. Kuhajda v. Borden Dairy Co. OF Ala., LLC., 202 So. 3d 391 (Fla. 2016)
- Reliance Mut. Life Ins. Co. of Ill. v. Booher, 166 So. 2d 222 (Fla. 2d DCA 1964)
- Tower Hill Signature Ins. Co. v. Javellana, 238 So. 3d 372 (Fla. 3d DCA 2017)