15 Fla. L. Weekly Supp. 1168a
Insurance — Med Pay — Attorney’s fees — Prevailing insured — Error to deny insured’s motion for attorney’s fees where insurer settled claim after suit was filed — Insurer that made ambiguous offer to pay medical payment coverage before insured filed suit for benefits, but did not attempt to pay sums due, did not make effective tender prior to suit
STEPHANIE CASKEY-DELUDE, Appellant, vs. CINCINNATI INSURANCE CO., Appellee. Circuit Court, 20th Judicial Circuit (Appellate) in and for Lee County. Case No. 07-28-AP. L.C. Case No. 06-5327-CC. August 13, 2008. Appeal from the County Court for Lee County; Radford R. Sturgis, Judge. Counsel: Mark C. Menser, Fort Myers, for Appellant. W. Gus Belcher II, Fort Myers, for Appellee.
CERT. DENIED at 34 Fla. L. Weekly 1156a
(PER CURIAM.) In the underlying action, Appellant, Stephanie Caskey-Delude, filed suit to recover medical payment coverage from Appellee, Cincinnati Insurance Co., after Appellant fell at a gas station insured by Appellee. Appellee settled after the proceeding had already been filed. Appellant then moved for attorney’s fees pursuant to Fla. Stat. Section 627.428(1). The trial court denied Appellant’s motion for attorney’s fees. This appeal follows.
Fla. Stat. Section 627.428(1) provides that:
Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall 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 recovery is had.
“[T]he purpose of section 627.428 is to penalize an insurance company for wrongfully causing its insured to resort to litigation in order to resolve a conflict with its insurer when it was within the company’s power to resolve it.” Bassette v. Standard Fire Ins. Co., 803 So.2d 744, 746 (Fla. 2d DCA 2001). An insurer will owe attorney’s fees to its insured where coverage is disputed and the insured prevails, whether by judgment or a confession of judgment. Id. Payment made after suit is filed operates as a confession of judgment. Id.; Wollard v. Lloyd’s & Cos. of Lloyd’s, 439 So.2d 217, 218 (Fla.1983); Travelers Indem. Ins. Co. of Ill. v. Meadows MRI, LLP, 900 So.2d 676, 679 (Fla. 4th DCA 2005).
Appellant argues that she was compelled to sue to obtain the medical payment coverage, due to Appellee’s refusal to tender the payment upon receipt of her valid claim. The record shows Appellant waited several months before resorting to litigation, and that she was not paid by Appellee until after she filed suit. Appellant did not “race to the courthouse” before payment was sent in order to receive attorney’s fees under the statute, and it appears she would not have received the coverage due without judicial intervention. See Jerkins v. USF&G Specialty Ins. Co., __ So.2d __, 2008 WL 678667 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D763a].
Appellee argues that it did not force Appellant to sue because it did offer to pay the medical payment coverage in a letter several months before litigation. However, during the evidentiary hearing, the trial court found that the letter was ambiguous, and no payment was actually tendered. To make an effective tender, one must actually attempt to pay the sums due; mere offers to pay, or declarations that one is willing to pay, are not enough. Southfork Investments Group, Inc. v. Williams, 706 So.2d 75 (Fla. 2d DCA 1998). Therefore, Appellee’s offer was not payment. Appellant was entitled to attorney’s fees under the statute.
Accordingly, the trial court’s denial of Appellant’s motion for attorney’s fees is REVERSED, and this matter is REMANDED for further proceedings in which the trial court shall hold a hearing on the amount of attorney’s fees reasonably incurred by Appellant in the trial court proceedings. (CORBIN, MONACO, and ADAMS, JJ., concur.)
