22 Fla. L. Weekly Supp. 246a
Online Reference: FLWSUPP 2202SPANInsurance — Attorney’s fees — Insured is entitled to award of attorney’s fees incurred in enforcing settlement agreement against insurer
CHRISTINE SPANO and JOSEPH SPANO, Plaintiff(s), vs. ADRIANA HAGOPIAN SANCHEZ, Defendant(s). Circuit Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division. Case No. 502013CA012749, Division AN. July 25, 2014. Jacks S. Cox, Judge.
ORDER ON PLAINTIFF’S MOTION TO ENFORCESETTLEMENT AND FOR SANCTIONS (D.E. #53)
THIS CAUSE came before the Court upon Plaintiff’s Motion to Enforce Settlement and for Sanctions as well as the Agreed Order entered April 14, 2014 (D.E. #64), and the Court having reviewed the motion and the Court file, and being otherwise fully advised in its premises, it is
HEREBY ORDERED AND ADJUDGED that the Plaintiff’s Motion for the Award of Attorney’s Fees, pursuant to Fla. Stat. §627.428 is hereby granted. This is compensation for the insured’s attorney in prosecuting and compelling the payment under the Settlement Agreement reached between the insured and the insurer.
The Court agrees that Pepper’s Steel & Alloys, Inc. v. United States, 850 So. 2d 462, (Fla. 2003) [28 Fla. L. Weekly S455a] is controlling.
The Court further awards interest at the rate of 12% per year from the date due (January 30, 2014) to the date that the Settlement Draft was tendered (February 13, 2014), 15 days.
The Plaintiff is to submit to the Court an Affidavit of all time and expenses incurred after January 30, 2014 for purposes of requiring the insurance company to comply with their agreement to settle, together with a supporting Affidavit of an independent attorney finding the time to be reasonable and necessary. If the Defense objects to the amount requested, the parties will advise the Court and the Court will set an evidentiary hearing on those portions of the amounts to which the Defense objects.
Because this matter is not a sanction, the time spent in preparation for the attorney’s fee hearing and attending the attorney’s fee hearing as to amount are not to be included as this Court by this Order had determined entitlement.
PLAINTIFF’S MEMORANDUM REGARDING PLAINTIFF’SMOTION TO COMPEL SETTLEMENT ANDAPRIL 14, 2014 COURT ORDER
The Plaintiffs, by and through their undersigned counsel, hereby file their memorandum in support of their motion to compel settlement and pursuant to the court’s instructions, and as grounds would set forth as follows:Entitlement to Fees and interest
1. Defendant’s insurance company and Plaintiff entered into a written settlement agreement and the parties have since stipulated to the court that payment of the settlement proceeds was not made timely which required the Plaintiff filing its motion to enforce and compel settlement. The only issue before the court pursuant to the Court’s Order dated April 14, 2014 (see attached Exhibit A) is entitlement to attorney fees associated with enforcement of the settlement agreement.
2. Pursuant to F.S. §627.4256, Defendant’s insurance company was required to tender payment on or before the 20th day from the date of the settlement.
3. Defendant’s insurance company failed to timely tender payment. Plaintiff was forced to file her motion to enforce settlement.
4. Plaintiff is now entitled to her attorney’s fees. F.S. §627.428 states in relevant part the following:
(1) 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 the recovery is had.
5. A settlement is equivalent to a confession of judgment or verdict in favor of the Plaintiff. See Pepper’s Steel & Alloys Inc. v. United States of America, 850 So. 2d 462, 465 (Fla. 2003) [28 Fla. L. Weekly S455a]. As the parties have reached a settlement, the present issue falls within the scope of §627.428.
6. “§627.428 was intended to discourage litigation and encourage prompt settlement…” Do v. GEICO, __ So. 3d __ Case No. 3D12-1655 (Fla. 3rd DCA 2014) [39 Fla. L. Weekly D455b]. Furthermore, §627.428 was intended to reimburse a plaintiff for his or her attorney’s fees when a plaintiff is compelled to enforce or defend the plaintiff’s insurance agreement. Id.
7. Moreover, “the statute [§627.428] applies in virtually all suits arising under insurance contracts…” State Farm Fire & Casualty Co. v. Palma, 629 So. 2d 830, 832 (Fla. 1993) Stating further that, “the terms of section 627.428 are an implicit part of every insurance policy issued in Florida. Id.
8. The purpose of 627.428 is to discourage insurance companies from contesting issues that should not be contested and to reimburse a party for its attorney’s fees when they must enforce legal issues against the insurance company in court proceedings. Bell v. U.S.B. Acquisition Co., Inc, 734 So.2d 321 (Fla. 1999); Delta Casualty Co. v. Pinnacle Medical, Inc., 721 So.2d 321 (Fla. 5DCA 1998) [23 Fla. L. Weekly D2233b], affirmed, 753 So.2d 55 (Fla 2000) [25 Fla. L. Weekly S72a].
9. A case analogous to the present one is Pepper’s Steel & Alloys Inc. v. United States of America, 850 So. 2d 462 (Fla. 2003) [28 Fla. L. Weekly S455a]. In Alloys, the plaintiff entered into a settlement agreement with the defendant. Id. at 464. The defendant disputed the existence of the settlement agreement. Id. The plaintiff moved to enforce the settlement agreement. Id. The district court held the settlement agreement was valid. Id. The plaintiff then moved for attorney’s fees pursuant to §627.428 for the time spent moving to enforce the settlement. Id.
10. The Florida Supreme Court held that a motion to enforce settlement is within the scope of §627.428. Id. at 466. The Supreme Court reasoned that, “§627.428 provides for fees awardable to the insured’s attorney ‘prosecuting the suit in which the recovery is had.’ Id. Stating further that, “it would be incongruous to permit fees incurred in reaching a settlement agreement, but not to allow fees to determine whether the parties reached a binding settlement in the first place.”
11. In the present case, Defendant’s insurance company entered into a settlement agreement with Plaintiff. However Defendant’s insurance company refused to properly tender the amount agreed upon. As a result, Plaintiff was forced to file a motion to enforce settlement.
12. Defendant argues that Plaintiff is only entitled statutory interest pursuant to §627.4265. First, the Defendant still has not made any statutory interest payment to the Plaintiff. Secondly, nowhere does said statute state that the remedies provided in §627.4265 is exclusive to any other remedy.
13. Furthermore, providing only contractual interest fails to reimburse Plaintiff’s attorney for wasted valuable time when a plaintiff is compelled to enforce an agreement. Attorney fee reimbursement would be imperative if time and expense was required of a party to enforce and compel completion of any settlement agreement through litigation. In fact, the Fourth District Court of Appeal affirmed a 15th Judicial Circuit ruling and found an award of attorney fees could also include, not only the time necessitated to compel enforcement of the settlement agreement, but also the attorney time necessitated litigating the attorney’s fees issue itself because the fees awarded to compel enforcement was also a sanction award. Condren v. Bell, 853 So.2d 609 (Fla. 4DCA 2003) [28 Fla. L. Weekly D1766b]
14. Attorney fees are often assessed in conjunction with the required statutory interest in our Florida County and Circuit Courts to enforce prompt settlement resolution and to avoid dilatory payment practices. Espaillat v. Permanent General Assurance Corporation, 16 Fla. L. Weekly Supp. 1122a (9th Judicial Cir. 2009), Raymond Clites, D.C., P.A. v. United Services Automobile Association, 8 Fla. L. Weekly Supp. 391a (13th Judicial Cir. 2001), Jeffrey Friedman, M.D., P.A., v. Allstate Indemnity Company, 11 Fla. L. Weekly Supp. 651b (9th Judicial Cir. 2004).
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