12 Fla. L. Weekly Supp. 1139a
Insurance — Automobile — Appeal of judgment in favor of finance company in action against insurer that refused to make payment to company for total loss of financed vehicle, arguing that trial court erred in denying claims for prejudgment interest, attorney’s fees and costs — Standing — Where insurance declarations identified finance company as lienholder, and parties’ witnesses referred to company as lienholder or loss payee, insurer acknowledged that company was beneficiary under policy and had standing to pursue breach of contract claim — Breach of settlement agreement — Prejudgment interest — Where finance company prevailed on breach of settlement claim, but findings of trial court do not indicate whether settlement agreement was written or oral, and it cannot be determined from record that agreement was written, company is not entitled to prejudgment interest — Attorney’s fees — Where finance company that was intended beneficiary under policy prevailed because insurer confessed to judgment by electing to settle disputed claim after company filed complaint and because company prevailed on breach of settlement claim, company is entitled to award of attorney’s fees — Costs — Insurer concedes that finance company is entitled to award of costs
SOUTHERN AUTOMOTIVE FINANCE COMPANY, Appellant, v. OCEAN HARBOR CASUALTY INSURANCE COMPANY, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) Broward County. Consolidated Case No. 04-8832 (12). L.T. Case No. 03-2862 (55) August 12, 2005. Appeal from the final judgment of the Broward County Court; Jerry Pollock; Judge. Counsel: Richard Hussey, Richard A. Hussey, P.A., Fort Lauderdale, for Plaintiff/Appellant. Hinda Klein, Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for Defendant/Appellee.
(DORIAN DAMOORGIAN, J.) Southern Automotive Finance Company (“SAFCO”), appeals the final judgment in its favor to the extent that appellant’s claims for prejudgment interest, recoverable costs, and attorney’s fees were denied by the trial court.
The issues presented in this appeal raise questions of law and, therefore, the standard of review is de novo. Howard v. Savitsky, M.D., 813 So. 2d 978 (Fla. 2d DCA 2002).
The facts are not in dispute. SAFCO financed the purchase of a vehicle insured by Ocean Harbor Casualty Insurance Company (“Ocean Harbor”). The insurance declarations named SAFCO as a lien holder. While insured, the vehicle was stolen. Ultimately, the vehicle was recovered, but due to the extensive damage to the vehicle, Ocean Harbor declared the vehicle a total loss. SAFCO filed a claim under the Ocean Harbor insurance policy. Ocean Harbor refused to tender payment to SAFCO, prompting SAFCO to file suit against Ocean Harbor for breach of insurance policy (Count I); breach of settlement agreement (Count I); and breach of financing agreement against the vehicle owner (Count III). After filing the lawsuit, Ocean Harbor informed SAFCO that it would not tender payment until the motor vehicle owner signed a total loss form. During the litigation, the vehicle owner ultimately signed the total loss form and assigned the insurance proceeds to SAFCO for the loss of the vehicle. SAFCO voluntarily dismissed Count III of the complaint. Thereafter, Ocean Harbor provided written notice of its intention to tender payment. The parties stipulated that the amount of compensatory damages was $7,374.00, although this amount would be reduced by the policy deductible. Ultimately, Ocean Harbor tendered $6,874.00 to SAFCO. The amount tendered did not include prejudgment interest and attorney’s fees. SAFCO then moved for entry of summary final judgment seeking, inter alia, an award of prejudgment interest and attorney’s fees. The trial court denied the motion and the case proceeded to trial. A final judgment was entered in favor of SAFCO on its claim for breach of settlement agreement for the stipulated amount. The trial court denied SAFCO’s claim for breach of insurance policy, and its claims for prejudgment interest at the statutory rate of 12% and attorney’s fees.
The first issue on appeal is whether SAFCO had the right to enforce insurance policy issued by Ocean Harbor. Ocean Harbor argues that this issue was not raised below and therefore SAFCO is precluded from raising it on appeal. A review of the record shows that the issue was indeed raised at the trial level, both in the complaint and at trial. Therefore, SAFCO preserved this issue for appeal.
The insurance declarations identified SAFCO as a “lienholder”. Moreover, the parties’ witnesses used the terms “lienholder” and “loss payee” interchangeably when referring to SAFCO. By identifying SAFCO as a lienholder or loss payee Ocean Harbor acknowledged that SAFCO was a beneficiary under the policy. Leasing Service Corp. v. American Motorist Ins. Co., 496 So. 2d 847 (Fla. 4th DCA 1986). Accordingly, SAFCO had standing to pursue a breach of contract claim against Ocean Harbor as a beneficiary under the policy of insurance.
SAFCO next argues that as the prevailing party on its breach of settlement claim, it is entitled to pre and post judgment interest calculated at the rate of 12% under Florida Statute § 627.4265. Ocean Harbor correctly points out that interest under § 627.4265 is only recoverable if the settlement agreement is in writing. The findings of the trial court do not indicate whether the settlement agreement was written or oral. Moreover, it cannot be determined from the record that the settlement agreement was in writing. Therefore, SAFCO is not entitled to interest under § 627.4265.
The last issue before this court is whether SAFCO is entitled to an award of attorney’s fees in the trial and appellate court proceedings under Fla. Stat. § 627.428. SAFCO was an intended beneficiary under the policy of insurance. Leasing Service Corp., 496 So. 2d at 849. Therefore, if SAFCO prevailed on any of its claims against Ocean Harbor, it is entitled to an award of its reasonable attorney’s fees. Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000).
It is well established law in Florida that the settlement of a disputed claim in favor of an insured is the functional equivalent of a confession of judgment of that claim. See e.g. Wollard v. Lloyd’s and Companies of Lloyd’s, 439 So. 2d 217 (Fla. 1983). In the instant case, SAFCO is a prevailing party for two reasons. First, because Ocean Harbor confessed to a judgment by electing to settle the disputed claim after SAFCO filed its complaint; and second, because SAFCO prevailed on its breach of settlement claim. Wollard, 439 So. 2d at 218; Pepper’s Steel & Alloys, Inc. v. U.S., 850 So. 2d 462, 467 (Fla. 2003). Accordingly, SAFCO is entitled to an award of its reasonable attorney’s fees.
Finally, Ocean Harbor concedes that SAFCO is entitled to taxable costs as the prevailing party.
Based upon the foregoing, this matter is REMANDED to the County Court with directions to determine SAFCO’s reasonable attorney’s fees and recoverable costs, and enter judgment in the amounts so determined in favor of SAFCO.
* * *
