LARRY KENT WASHINGTON, APPELLANT,
v.
RICHARD R. RODGERS AND PRUDENCE MUTUAL CASUALTY COMPANY, A CORPORATION, APPELLEES
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Washington sought attorney's fees under Florida's uninsured motorist statute after obtaining a judgment against his insurer. The trial court denied his post-judgment motion for attorney's fees because he had not requested them in his pleadings or at trial. The appellate court reversed, holding that attorney's fees need not be specially pleaded under the statute.
Attorney's fees need not be specially pleaded under F.S.A. § 627.0127; the statute dispenses with the necessity of pleading for such relief. The case must be reversed and remanded for a finding of reasonable attorney's fees.
“This matter is controlled by the statute above cited which dispenses with the necessity of pleading the liability.”
Establishes that F.S.A. § 627.0127 does not require attorney's fees to be pleaded in the complaint
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Join FLexlaw to unlock all legal intelligenceWashington filed an amended complaint on November 19, 1965, against defendant Rodgers and his own insurance carrier under the uninsured motorist provi…
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This cause involves a motion for attorney’s fees filed pursuant to F.S.A. § 627.-0127.
Plaintiff filed an amended complaint on November 19, 1965, seeking damages against Defendant-Rodgers and his own insurance carrier under the uninsured motorist provision of his policy. Nowhere in the amended complaint was there a request for attorney’s fees.
The case went to trial before the court without a jury. During the proceedings no mention was made of attorney’s fees. On August 12, 1966, a final judgment was entered for the plaintiff. On August 14, 1966, plaintiff filed his motion for costs and attorney’s fees. The court, by order dated September 16, 1966, denied plaintiff’s motion. It is this order which is here appealed.
Simply presented, the issue is whether it is necessary, in order to obtain attorney’s fees under F.S.A. § 627.0127, to make a specific demand in the pleadings for such attorney’s fees.
At first we were inclined to affirm the trial court’s order on the basis that attorney’s fees are special damages and, therefore, must be specially pleaded. However, a series of three Supreme Court cases leaves us with the impression that we have no alternative but to reverse.
These three cases deal with an award of attorney’s fees under the statutory predecessor of F.S.A. § 627.0127, which for present purposes is identical to the present section.
In United States Fire Insurance Co. v. Dickerson, 1921, 82 Fla. 442, 90 So. 613, the plaintiff did not make a demand for attorney’s fees in a declaration upon an insurance policy. The court noted that the correct practice would be to make a claim in the declaration for attorney’s fees under the statute, but declined to reverse the award since the parties had agreed among themselves what sum constituted a reasonable attorney’s fee. Additionally, the court noted that “[i]f the judgment should be reversed on this point, however, it would be reversed with directions to permit the plaintiff to file an amendment to his declaration and claim a reasonable attorney’s fee. * * * ”
Some years later the Supreme Court considered a similar situation in National Beneficial Life Insurance Company v. Brown, 1931, 103 Fla. 758, 139 So. 193. The judgment awarded was for a greater sum than the verdict and interest and “seems to have been increased by the allowance of Attorneys fees, which were fixed by the jury in its verdict as required by [predecessor of § 627.0127]. This matter is controlled by the statute above cited which dispenses with the necessity of pleading the liability.(Emphasis added.)
The final case in this trilogy is New Amsterdam Casualty Company v. James, 1936, 122 Fla. 710, 166 So. 813. Again there was no allegation concerning attorney’s fees in the declaration. The defendant assigned as error the court’s entering judgment for attorney’s fees. The Supreme Court stated that this point had been settled adversely to the contention of the defendant and quoted the above material from the Brown case.
Under authority of the above-mentioned cases we must reverse and remand for a finding of reasonable attorney’s fees to be awarded appellant.
Reversed.
ANDREWS and CROSS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Stockman v. Downs, 573 So. 2d 835 (Fla. 1991)…ey’s fees authorized by statute, Miami Lincoln Mercury, Inc. v. Kramer, 399 So. 2d 1003 (Fla. 3d DCA), review dismissed, 408 So. 2d 1094 (Fla. 1981); Ocala Music & Marine Center v. Caldwell, 389 So. 2d 222 (Fla. 5th DCA 1980); Washington v. Rodgers, 201 So. 2d 636 (Fla. 4th DCA 1967), cert. denied, 211 So. 2d 556 (Fla.1968), but that attorney’s fees sought pursuant to contract must be pled. E.g., Millard v. Brannan, 553 So. 2d 1248 (Fla. 2d DCA 1989); Altamonte Hitch & Trailer Serv., Inc. v. U-Haul Co., 498 S…
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Ocala Music & Marine Ctr. v. Caldwell, 389 So. 2d 222 (Fla. 5th DCA 1980)…to plead for attorney’s fees. Ocala Marine appeals. According to our Florida Supreme Court, although it is the better practice to plead attorney’s fees, a party is not required to plead them where they are allowed by statute. Washington v. Rogers, 201 So. 2d 636 (Fla. 4th DCA 1967), cert. denied sub nom., Prudence Mut. Cas. Co. v. Washington, 211 So. 2d 556 (Fla. 1968); New Amsterdam Cas. Co. v. James, 122 Fla. 710, 166 So. 813 (1936); National Benefit Life Ins. Co. v. Brown, 103 Fla. 758, 139 So. 193 (1931…
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Taggart Corp. v. Benzing, 434 So. 2d 964 (Fla. 4th DCA 1983)…st of facts which may have influenced the result. In Brown v. Gardens By The Sea South Condominium Association, supra, for instance, our Court found estoppel because behavior on both sides was tantamount to implied consent. In Washington v. Rodgers, 201 So. 2d 636 (Fla. 4th DCA 1967), we held that statutory attorney’s fees need not be pled. Later we held in Hartford Accident & Indemnity Company v. Smith, 366 So. 2d 456 (Fla. 4th DCA 1978), and in McCallum v. McCallum, 364 So. 2d 97 (Fla. 4th DCA 1978), that t…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States Fire Ins. Co. v. Mrs. T. D. Dickerson, 82 Fla. 442 (Fla. 1921)
- The Nat'l Benefit Life Ins. Co. v. Ansel L. Brown, 103 Fla. 758 (Fla. 1931)
- New Amsterdam Cas. Co. v. James, 122 Fla. 710 (Fla. 1935)