ANNA B. JOHNSON, APPELLANT,
v.
ATLANTIC NATIONAL INSURANCE COMPANY, A FLORIDA CORPORATION, APPELLEE
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The Florida District Court of Appeal reverses a trial court's denial of attorney fees to a tort claimant who successfully defended an insurance company's declaratory judgment action. The court holds that a tort claimant who is forced to defend against an insurer's suit denying coverage is entitled to recover attorney fees under Florida statute, just as an insured would be.
A tort claimant is entitled to recover attorney fees when she successfully defends against an insurer's suit denying coverage, even though she is not the named insured. The statute is not limited to insured's but extends to tort claimants who are the beneficiaries of automobile liability policies.
“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.”
Establishes that when an insurer forces others to defend its declaratory judgment action, those defendants are entitled to attorney fees if they prevail
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Join FLexlaw to unlock all legal intelligenceJohnson was involved in an automobile accident with Atlantic National Insurance Company's insured. Atlantic sought declaratory relief claiming it had …
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Defendant appeals chancellor’s refusal to award attorney fees pursuant to § 627,-0127 Fla.Stat., F.S.A.1
*341Appellant was involved in an automobile accident with appellee’s insured. Appellee claimed that in regard to this accident, it was not obligated to defend its insured and in the event that appellant obtained a judgment against its insured, it would not be obligated to pay the same. Appellee sought to establish the above contentions by means of instituting an action for declaratory relief. Both, appellee’s insured and appellant, were named as parties-defendants in this action. The appellee’s insured did not actively participate in the litigation and a decree pro confesso was entered against him. Appellant, however, vigorously defended this action, and as a result of such' activities (involving an appeal to this court, Fla.App., 155 So.2d 886) the appellee’s contention was refuted. In a well reasoned opinion, 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 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.”
We can find no distinguishing feature between that case and this. The factual differences are insufficient to cause us to reach a different result. In James the insured and tort-claimant-judgment creditor both actively defended the insurance company’s suit, whereas, in our case just the tort claimant defended. To us, this is more justification for holding the tort claimant entitled to attorney fees. It must be remembered that appellant is not a volunteer; she was made a party to this litigation at the behest of the insurance company. The James opinion did not limit the recovery of attorney fees to insured’s to the exclusion of tort claimants who are clearly the beneficiaries of automobile liability policies.
In view of the above, the interlocutory order appealed from is reversed and remanded for proceedings consistent with the views expressed herein.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Roberts v. Carter, 350 So. 2d 78 (Fla. 1977)…sured”. To the extent that James Furniture construes “beneficiary” to encompass an award to an injured tort claimant or an employee of the contracting insured, the decision is disapproved. Similarly, we disapprove Johnson v. Atlantic Nat’l Ins. Co., 163 So. 2d 340 (Fla. 3d DCA 1964), cert. denied, 188 So. 2d 314 (Fla. 1966), which applied James Furniture to sustain a fees award for an injured tort claimant on the theory that the claimant was a policy “beneficiary”. Aetna Cas. & Sur. Co. v. Mills, 192 So. 2d 5…
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Wilder v. Wright, 278 So. 2d 1 (Fla. 1973)…s entitles him to attorney’s fees in the initial action on the issue of liability. We disagree. Petitioner cites Travelers Insurance Co. v. Tallahassee Bank & Trust Co., 133 So. 2d 463 (1st DCA Fla.1961), Johnson v. Atlantic National Insurance Co., 163 So. 2d 340 (3rd DCA Fla.1964) and Thompson v. Commercial Union Insurance Company of New York, 250 So. 2d 259 (Fla.1971) in support of his position. However, the District Court correctly explained why those cases are inapplicable to the present situation. In ea…1 / 3
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Wilder v. Wright, 269 So. 2d 434 (Fla. 2d DCA 1972)…. The 1st District Court properly held that “under the terms of the [contractual] assignment, the as-signee was in effect substituted for the insured until the policies were reclaimed. .” Johnson v. Atlantic National Insurance Company, Fla.App.1964, 163 So. 2d 340, also relied upon by Wilder, is distinguishable. There the insurance company initiated a declaratory judgment action against its insured tort-feasor and the tort claimant to determine liability coverage under its policy. Attorneys’ fees were awarded…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Johnson v. Atl. Nat'l Ins. Co., 155 So. 2d 886 (Fla. 3d DCA 1963)
- James Furniture Mfg. Co., Inc. v. Md. Cas. Co., 114 So. 2d 722 (Fla. 3d DCA 1959)