CENTRAL MUTUAL INSURANCE COMPANY, APPELLANT,
v.
MICHIGAN MUTUAL LIABILITY COMPANY, APPELLEE
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Central Mutual Insurance Company appeals an order requiring it to pay $1,500 in attorney's fees to Michigan Mutual Liability Company in connection with a declaratory judgment action regarding pro rata contribution on an uninsured motorist claim. The court reversed, holding that attorney's fees under Florida Statute § 627.428(1) are only available in suits by or on behalf of insureds against insurers, not in inter-insurer disputes.
No. Attorney's fees under § 627.428(1) are available only in actions for enforcement of claims by an insured or beneficiary against an insurer under the insured's policy. An inter-insurer dispute regarding pro rata contribution does not qualify because the other insurer is not a party to the original policy and is not an insured or named beneficiary.
[1] An award of attorney's fees against an insurer is authorized only when judgment is entered against the insurer and in favor of the insured or beneficiary.
[2] A statute directing attorney's fees against an insurer in favor of an insured or beneficiary does not apply to litigation between two insurance companies.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Section 627.428(1) Fla.Stat., F.S.A. directs the trial court to 'adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured's or beneficiary's attorney prosecuting the suit in which the recovery is had,' upon the entry of a judgment 'against an insurer and in favor of an insured or the named beneficiary under a policy or contract executed by the insurer.'”
Establishes the statutory requirement for awarding attorney's fees—the judgment must be against an insurer and in favor of an insured or named beneficiary under the insurer's policy.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceTwo insurance companies—Central Mutual and Michigan Mutual—each issued coverage to different parties involved in the same accident caused by an uninsu…
The full statement of facts, procedural history, and disposition for this case are member content.
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CHARLES CARROLL, Judge.
This appeal challenges an order for payment of an attorney’s fee by one insurance company to another insurance company, incident to ordering pro rata contribution by two insurers, of an uninsured motorist claim for which both insurers had supplied coverage.
The claimants were insured under an automobile liability policy issued by Central Mutual Insurance Company, with uninsured motorist coverage. When injured they were in an automobile, the owner of which was similarly insured by Michigan Mutual Liability Company. The claim was for injury caused by a third party, an uninsured motorist. Each insurer filed an action for declaratory judgment relating to coverage. The cases were consolidated.
The litigation between the insurers was as to whether one was liable to the exclusion of the other, or whether the loss payment was to be pro rated.
Central settled with its insureds for $4,750, which included $500 attorney’s fee. The claimants made no claim for attorney’s fees from the other insurer, Michigan. On final hearing the court ruled that the coverage should be pro rated between the two insurers, pursuant to Allstate Insurance Co. v. Dairyland Insurance Co., Fla.1972, 271 So. 2d 457. By a separate judgment entered on the motion of Michigan against Central for attorney’s fee, the court entered judgment in favor of Michigan against Central for an attorney’s fee in the amount of $1,500.
Section 627.428(1) Fla.Stat., F.S.A. directs the trial court to “adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had,” upon the entry of a judgment “against an insurer and in favor of an insured or the named beneficiary under a policy or contract executed by the insurer.” [Emphasis added.]
The attorney’s fee allowance here was not one authorized or directed by the statute.1 Michigan was not a party to the contract of insurance issued by Central. Michigan was not “an insured or the named beneficiary” under the Central policy. The insured claimants were not concerned in the outcome of the actions prosecuted by the two insurers.
Reversed.
. This is not a case for the enforcement of a claim of an insured under a policy, by an assignee of the insured or by another in the name of the insured. Of. Cosmopolitan Mutual Ins. Co. v. Eden Roc Hotel, Fla.App.1972, 258 So. 2d 310; All Ways Reliable Building Maintenance, Inc. v. Moore, Fla.1972, 261 So. 2d 131.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- ALL Ways Reliable Bldg. Maint., Inc. v. Moore, 261 So. 2d 131 (Fla. 1972)
- Allstate Ins. Co. v. Dairyland Ins. Co., 271 So. 2d 457 (Fla. 1972)
- Cosmopolitan Mut. Ins. Co. v. Eden ROC Hotel, 258 So. 2d 310 (Fla. 3d DCA 1972)