JOHN W. DAWSON AND NELLIE DAWSON, HIS WIFE, APPELLANTS,
v.
AETNA CASUALTY & SURETY COMPANY, A CONNECTICUT CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF FLORIDA, APPELLEE
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The court held that the dismissal of the insurer's declaratory action constituted a judgment against the insurer, making the attorney's fees statute applicable to the appellant's counterclaim.
[1] A declaratory judgment action seeking to determine an insurer's liability is considered a judgment against the insurer in favor of the insured for the purpose of awarding…
[2] A counterclaim for attorney's fees and costs is not premature when filed in response to an insurer's declaratory judgment action seeking to avoid liability.
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Join FLexlaw to unlock all legal intelligenceAetna Casualty & Surety Company filed a declaratory judgment action to determine workmen's compensation insurance coverage for an injured employee. Th…
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Aetna Casualty & Surety Company originally brought a declaratory decree action against the appellant and others for the purpose of determining whether or not there was a workmen’s compensation insurance policy in force and effect at the time when one Grady Jackson was injured in an industrial accident. At the time of the injury, Jackson was employed either by the appellant or by another, Horton, who had acquired the business employing Jackson.
After being served with the complaint, the appellants Dawson thereafter filed a motion to dismiss together with an answer and counterclaim, the counterclaim requesting attorney’s fees and costs. Thereafter, the trial judge entered an order of dismissal, finding that the matter of workmen’s compensation coverage was presently pending before the Florida Industrial Commission for determination, and moreover, finding that the appellant’s counterclaim was premature in view of those pending proceedings.
The appellee argues that § 627.0127 Fla. Stat., F.S.A. is not applicable to the case at bar, in that the trial judge’s disposition in this case was not “ * * * against an insurer in favor of an insured or the named beneficiary under a policy or contract executed by the insurer.” We do not agree. The insurance company is seeking, by this action, a determination that it is not liable for the damages incurred by Jackson and, consequently, that his recovery must be from the appellants and/or Horton. The dismissal of the insurance company’s action, therefore, in our opinion is the “ * * rendition of a judgment * * * against an insurer in favor of an insured.” See James Furniture Mfg. Co., Inc. v. Maryland Cas. Co., Fla.App.1959, 114 So.2d 722. Moreover, the fact that the appellants raised the issue by way of a counterclaim, rather than the usual procedure of filing a motion for attorney’s fees, should not disqualify them from the statutory benefits bestowed by § 627.0127, supra.
Therefore, the dismissal of the appellant’s counterclaim is hereby reversed.
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Roberts v. Carter, 350 So. 2d 78 (Fla. 1977)…ur. Co. v. Mills, 192 So. 2d 59 (Fla. 3d DCA 1966), illustrates a situation where the current statute would authorize attorney’s fees, despite the reliance there on the James Furniture and Johnson decisions. See also Dawson v. Aetna Cas. & Sur. Co., 233 So. 2d 860 (Fla. 3d DCA 1970). .See, for example, All Ways Reliable Bldg. Maintenance, Inc. v. Moore, 261 So. 2d 131 (Fla. 1972); Travelers Ins. Co. v. Tallahassee Bank & Trust Co., 133 So. 2d 463 (Fla. 1st DCA 1961), cert. denied, 138 So. 2d 332 (Fla. 1962).…
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Queen v. Travelers Ins. Co., 258 So. 2d 35 (Fla. 3d DCA 1972)…mounts awarded them under an arbitration agreement where the amount awarded was modified to include the arbitrator’s fees. Old Republic Insurance Company v. Monsees, Fla.App. 1966, 188 So. 2d 893; Dawson v. Aetna Casualty & Surety Co., Fla.App.1970, 233 So. 2d 860. In the present instance the insurance policy was enforced and it was necessary for the policy holder to go into court in order to enforce the policy. The fact that the most expeditious method was by the policy holder’s support of the judgment holde…
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United Auto. Ins. Co. v. Miami Dade Cnty. MRI Corp., 56 So. 3d 121 (Fla. 3d DCA 2011)…010) (“Upon the rendition of a judgment or decree ... against an insurer and in favor of any named or omnibus insured ... the trial court ... shall adjudge ... in favor of the insured ... a reasonable sum as fees.”); Dawson v. Aetna Cas. & Sur. Co., 233 So. 2d 860, 861 (Fla. 3d DCA 1970) (insured entitled to a fee award upon dismissal of an action brought by insurer even though the same issue was then pending in an administrative proceeding).…
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- James Furniture Mfg. Co., Inc. v. Md. Cas. Co., 114 So. 2d 722 (Fla. 3d DCA 1959)