COMMERCIAL UNION INSURANCE COMPANY, APPELLANT,
v.
THE ESTATE OF DIANNE C. PLUTE, THE ESTATE OF JOHN R. SKEEN, OR HIS PERSONAL REPRESENTATIVE AND FLORIDA FARM BUREAU MUTUAL INSURANCE COMPANY, APPELLEES
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Commercial Union Insurance Company appeals an award of attorneys fees equaling 90% of the insurance policy payout under Florida Statute 627.428 for denying coverage and forcing the policyholder to sue. The court affirms the fee award but remands to ensure the policyholder is reimbursed for fees already paid, preventing a windfall for counsel.
The court affirms the $18,000 attorneys fee award as reasonable, holding that fees equal to or exceeding the amount of the award may be appropriate when substantial attorney time is required to recover from an obstinate insurer. The court remands to ensure the policyholder is reimbursed the $8,000 previously paid to counsel, unless the insured expressly agreed to pay an additional $26,000 total fee.
[1] An award of attorney's fees under Fla.Stat. …
[2] The amount of an insurance policy award is a factor in determining attorney's fees, but it is not of controlling significance.
Previewing 2 of 5 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“Sec. 627.428 of the Florida Statutes was enacted to protect the public from being squeezed out by the overwhelming economic power and resources of the insurance industry and was not designed to provide windfall profits for the legal profession.”
Establishes the statutory purpose underlying the attorneys fees provision and rejects allowing insurers to escape full payment of reasonable fees.
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Join FLexlaw to unlock all legal intelligenceThe insurance company (Commercial Union) denied coverage on an insurance policy, forcing the policyholder to sue for recovery. The trial court awarded…
The full statement of facts, procedural history, and disposition for this case are member content.
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LETTS, Judge.
On appeal is an award, pursuant to Sec. 627.428 Fla.Stat. (1975), of attorneys fees equalling 90% of the total amount payable under the policy. We affirm with directions.
A long recitation of the facts and circumstances of this case will not, in our opinion, provide significant precedent. Suffice it to say that the insurance company denied coverage and the policy holder was required to sue to recover. The insurer contests, not so much the hourly rate of $100.00, but the number of hours, estimated at 200. Furthermore, the insurer also contends that, properly handled, no more than 50 hours attorney’s time need have been expended, regardless of how much actually was expended, and cites numerous examples of what might appear to be incompetence on the part of the insured’s counsel. Lastly, the insurance company claims that some of the legal work involved was not attributable to its recalcitrance, even assuming such existed.
We suspect that one or more of these arguments by the insurer, may be, at least in part, correct, but find no overriding evidence of this in the record, to justify an overturning of the trial judge’s exercise in discretion.
We agree with the Third District that the insurance company should only be required to pay a reasonable fee for necessary representation. Allstate Insurance v. Baer, 334 So. 2d 135 (Fla.3d DCA 1976), but do not feel the record demonstrates, conclusively, that the trial judge here ignored the “reasonable” and “necessary” precepts under case law and statute. Nor can we say that fees equalling 90% of any award are conclusively capricious, for it would appear that a competent lawyer might well be required to expend a hundred hours of his time to recover a mere $5,000 from a stubborn and unreasonable insurer. If such were to occur, we would have no hesitation in approving a fee in excess of the award, because, although the amount of the award is a factor, it is not of controlling significance. All-Star Insurance v. Scandia, 321 So. 2d 575 (Fla.3d DCA 1975).
The insurance company also argues that the policy holder in this case has already paid his counsel $8,000 in fees out of his own pocket, and that the trial court’s ruling will result in an attorneys fee of $26,000 rather than the $18,000 envisaged by the trial judge.
However, there is nothing in the record to demonstrate that such will be the result and we cannot therefore overturn the award for that reason. Notwithstanding, the ethics of the situation, coupled with the nature of the representation, would obviously dictate the refund of the $8,000 unless the insured has agreed to a $26,000 fee. Sec. 627.428 of the Florida Statutes was enacted to protect the public from being squeezed out by the overwhelming economic power and resources of the insurance industry and was not designed to provide windfall profits for the legal profession.
The trial court has here determined that a total “reasonable” fee would be $18,000 and we are convinced that the applicable statute presupposes that the insurance company will pay all of that total fee. To think otherwise is to suppose that the legislature foresaw the payment of an unreasonable fee, in addition. Counsel for the insured, at the hearing on his attorneys fees, testified that his 200 hours, for which he has been rewarded by the court, included the setting up of, two estates, necessary interlocking negotiations with a second insurer and, generally, all representation incident to the end result. So be it.
This cause is affirmed, but remanded to • the trial judge for a hearing to ensure that the policy holder is to be reimbursed for the $8,000 he expended, unless, for some unlikely reason, the insured has, with full understanding, specifically agreed to pay this extra sum on top of the $18,000 awarded by the court.
AFFIRMED AND REMANDED IN ACCORDANCE HEREWITH.
ALDERMAN, C. J., and MOORE, J., concur.
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Fireman's Ins. Co. OF Newark v. Phillips, 368 So. 2d 98 (Fla. 3d DCA 1979)…lue of damages (i. e. $130,000) and the comparative negligence on the part of Phillips. The determination of the amount of an equitable distribution rests within the sound discretion of the trial court. Liberty Mutual Insurance Company v. Williams, 356 So. 2d 54 (Fla. 4th DCA 1978). There was no abuse of discretion on the part of the trial judge in deciding to apply the formula set out in National Ben Franklin Insurance Company v. Hall, supra. In fact, counsel for Fireman’s did not object when the trial jud…
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Metro. Dade Cnty. v. Taddia, 378 So. 2d 804 (Fla. 3d DCA 1980)…manded for further consideration in light of this opinion, the requirements of the statute and caselaw authority. See, Fireman’s Insurance Company of Newark v. Phillips, 368 So. 2d 98 (Fla. 3d DCA 1979); Liberty Mutual Insurance Company v. Williams, 356 So. 2d 54 (Fla. 4th DCA 1978); National Ben Franklin Insurance Company v. Hall, 340 So. 2d 1269 (Fla. 4th DCA 1976). The court may in its discretion permit the parties an opportunity to submit additional evidence relative to the issue of equitable distributio…
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Fla. Farm Bureau Cas. Ins. Co. v. Calvert, 381 So. 2d 1160 (Fla. 3d DCA 1980)…s. Co. v. Jenkins, 370 So. 2d 1201 (Fla. 1st DCA 1979); State Farm Mutual Automobile Ins. Co. v. Anderson, 332 So. 2d 623 (Fla. 4th DCA 1976); Moore v. Sky Realty Inc., 339 So. 2d 299 (Fla. 3d DCA 1976); Commercial Union Ins. Co. v. Estate of Plute, 356 So. 2d 54 (Fla. 4th DCA 1978); and All-Star Ins. Corp. v. Scandia, Inc., 353 So. 2d 171 (Fla. 3d DCA 1977).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Allstate Ins. Co. v. Bernhard Baer and Yetta Baer, 334 So. 2d 135 (Fla. 3d DCA 1976)
- All-Star Ins. Corp. v. Scandia, Inc., 321 So. 2d 575 (Fla. 3d DCA 1975)