UNITED BONDING INSURANCE COMPANY, AN INDIANA CORPORATION, APPELLANT,
v.
INTER NATIONAL BANK OF MIAMI, A BANKING ASSOCIATION ORGANIZED UNDER THE LAWS OF THE UNITED STATES, APPELLEE
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United Bonding Insurance Company appeals a judgment requiring it to pay bonds issued as security for promissory notes held by Inter National Bank of Miami. The court affirmed the judgment, holding that the bank was authorized to apply collateral proceeds to various loans as provided in the notes, and rejected the bank's cross-appeal seeking attorneys' fees under a statute inapplicable to surety bonds.
The bank properly applied collateral proceeds to the maker's various obligations as authorized by the notes, so the bonding company must pay the bonds. Attorneys' fees are not recoverable by the bank under Florida law in actions on surety bonds, even where the underlying notes provide for such fees.
“the notes between the bank and the maker, which were made part of the bond, specifically assigned and pledged to the bank the collateral security named therein for 'the payment of any other obligation or obligations of the maker or endorsers hereof to the payee herein, which now exists or may hereafter arise'”
Establishes the bank's authority to apply collateral proceeds to various obligations of the maker
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Join FLexlaw to unlock all legal intelligenceInter National Bank of Miami held two promissory notes and required United Bonding Insurance Company to issue bonds as security for their payment. The…
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United Bonding Insurance Company appeals from a final judgment rendered for Inter National Bank of Miami. This final judgment was entered after a non-jury trial of the issues involved in an action in which the bank sued the bonding company for payment on bonds it issued as security for payment of two notes held by the bank,
The appellant’s sole point for reversal of the final judgment is controlled, in our opinion, by Consolidated Naval Stores Co. v. Wilson, 82 Fla. 396, 90 So. 461, 21 A.L.R. 681 (1921); and Merker v. Lake Region Packing Association, 126 Fla. 589, 172 So. 702 (1936). See also Winchester v. Florida Electric Supply, Inc., Fla.App.1964, 161 So.2d 668; 57 A.L.R.2d 855 (1958).
*21In addition, the notes between the bank and the maker, which were made part of the bond, specifically assigned and pledged to the bank the collateral security named therein for “the payment of any other obligation or obligations of the maker or endorsers hereof to the payee herein, which now exists or may hereafter arise, * *
The bank was specifically authorized by the maker of the notes to apply the proceeds from the collateral security to its various loans to the maker in such manner as that complained of by this action.
The bank has cross-assigned as error the order of the trial court striking its demand to require the surety company to pay it reasonable attorneys’ fees under the provisions of Fla.Stat. § 627.0127, F.S.A.
The bank concedes that the Supreme Court of Florida has held that the statute authorizing recovery of attorneys’ fees in actions on insurance policies is inapplicable to suits on surety bonds. See Main v. Benjamin Foster Co., 141 Fla. 91, 192 So. 602, 126 A.L.R. 1434 (1939); Phoenix Indemnity Co. v. Union Finance Co., Fla.1951, 54 So.2d 188.
The bank seeks to distinguish these cases since the bonds involved there were fidelity bonds and here the bonds were security for payment of promissory notes and because the notes secured by these bonds specifically provided for the payment of attorneys’ fees.
The record on appeal reveals that the bank’s complaint against the surety did not allege that any attorneys’ fees were due under the notes. It alleged only that there was due and unpaid, the face amount of each of the notes plus interest. It further appears that the notes required only the maker and endorsers to pay reasonable attorneys’ fees in case a suit should be brought for the collection of the notes, and made no specific mention of payment of the notes by a surety in an action on a bond. This suit was based on the surety bonds and not the notes.
Under these facts and the law pronounced by the Supreme Court of Florida, ■it appears to us that attorneys’ fees are not required to be paid by the surety company to the bank in this cause. The order appealed from is, therefore,
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Dealers Ins. Co., Inc. v. Centennial Cas. Co., 644 So. 2d 571 (Fla. 5th DCA 1994)…ull force and effect. Centennial urges that its right of recovery of fees from Krash is incorporated into the [*574] bond based on the “any loss or damage” language; however, as noted in United Bonding Insurance Co. v. Inter National Bank of Miami, 221 So. 2d 20 (Fla. 3d DCA 1969), this was a suit on the bond, not on the Dealer Registration Agreement.2 The point of suretyship is that it offers a secondary source for collection of monies due contractually. Centennial did not recover from Krash under the cont…
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Bankers Fire & Cas. Ins. Co. v. Newman, 330 So. 2d 760 (Fla. 4th DCA 1976)…of a surety bond issued by the plaintiff-appellant to secure payment of a promissory note created a contractual obligation to pay attorney’s fees in the event of default on the bond. See United Bonding Insurance Co. v. Inter National Bank of Miami, 221 So. 2d 20 (Fla.App.3d 1969). While the promissory note provides for the payment of attorney’s fees on default, the bond itself imposes no such obligation. Moreover, the suit below was [*761] neither a suit on the note nor a suit against the surety to enforce…
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AETNA Cas. & Sur. Co. v. Hubbel, 704 So. 2d 1141 (Fla. 5th DCA 1998)…Co. v. Newman, 330 So. 2d 760 (Fla. 4th DCA 1976) (provision of surety bond to secure payment of promissory note did not create a contractual obligation to pay attorney’s fees in the event of default); United Bonding Ins. Co. v. Inter National Bank, 221 So. 2d 20 (Fla. 3d DCA 1969) (statute authorizing recovery of attorney’s fees in actions on insurance policies is inapplicable to suits on surety bonds). Centennial and Berryhill are not in harmony with Marshall. We disagree with the holding in Marshall and…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Elwin R. Main & Am. Sur. Co. of N.Y. v. Benjamin Foster Co., 141 Fla. 91 (Fla. 1939)
- Consol. Naval Stores Co. v. Wilson, 82 Fla. 396 (Fla. 1921)
- Phoenix Indem. Co. v. Union Fin. Co., 54 So.2d 188 (Fla. 1951)
- Winchester v. Fla. Elec. Supply, Inc., 161 So. 2d 668 (Fla. 2d DCA 1964)
- Roland v. State, 140 Fla. 692 (Fla. 1939)
- Merker v. Lake Region Packing Ass'n, 126 Fla. 589 (Fla. 1936)