Deotscj v/ Certain Underwriters at Lloyds of London, (J. Gordo; 3DCA; 1/11/23). This is an attorney’s fee case where section 626.9373 was the basis for the fees. That statute provides for prevailing party fees “upon the rendition of a judgment or decree by any court of this state against a surplus lines insurer in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer on or after the effective date of this act, the trial court or, if the insured or beneficiary prevails on appeal, the appellate court, shall adjudge or decree against the insurer in favor of the insured or beneficiary….” The DCA expressly dropped a footnote, however, stating:
- “Because section 626.9373 is patterned after section 627.428, the confession-ofjudgment doctrine applicable to section 627.428 applies equally to section 626.9373.” Bryant v. GeoVera Specialty Ins. Co., 271 So. 3d 1013, 1019 n.1 (Fla. 4th DCA 2019); see also Capitol Specialty Ins. Corp. v. Ortiz, 2019 WL 383868, at *3 (S.D. Fla. Jan. 15, 2019) (noting that sections 627.428 and 626.9373 “are nearly identical” and “that courts apply the two fee provisions in the same way”).
Apparently, there was a loss or destruction of property, and Lloyds was the insurer. They agreed to pay out, but undervalued the item, and the plaintiff sued, wanting more of a payout based on the true value of the time. Lloyds conducted an appraisal and then paid out more money, resolving the suit. The plaintiff moved for attorneys’ fees, and Lloyds of London opposed the motion because it paid 6 out after conducting the appraisal, and the matter never went to court. The DCA expressly ruled that because the lawsuit “was a necessary catalyst to resolve their claim and force Lloyds to proceed with the appraisal process,” the lower court had erred in denying plaintiff’s motion for attorney’s fees. The suit was not filed solely for the purpose of the fee award; there was a legitimate dispute. The suit was filed to force the defendant to satisfy its obligations under an insurance contract. When an insurer pays policy proceeds after suit is filed but before judgment has been rendered, payment of the claim constitutes the equivalent of a confession of judgment in favor of the insured, entitled the plaintiff to attorney’s fees. Reversed and remanded to award fees. Compare this with the Fourth District’s decision in People’s Trust Insurance Company v. Polanco summarized below, however!
Terry P. Roberts
Director of Appellate Practice Fischer Redavid PLLC