25 Fla. L. Weekly Supp. 572a
Online Reference: FLWSUPP 2506SHRIInsurance — Personal injury protection — Attorney’s fees — Proposal for settlement — Action brought by insured to determine whether alleged material misrepresentation precluded coverage was not civil action for damages within meaning of offer of judgment statute — Section 627.428 does not provide basis for award of attorney’s fees to insurer — Insurer is entitled to award of costs under section 86.081, which allows award of costs in declaratory judgment actions as are equitable
KENNETH SHRIEVES, Plaintiff, v. WINDHAVEN INSURANCE CORPORATION, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 16-CC-003133, Division U. August 3, 2017. Frances M. Perrone, Judge. Counsel: Timothy A. Patrick, Patrick Law Group, P.A., Tampa, for Plaintiff. Daniel Smith, for Defendant.
ORDER DENYING IN PART, GRANTING IN PARTDEFENDANT’S AMENDED MOTION FORATTORNEY’S FEES AND COSTS
THIS CAUSE came before the Court on July 18, 2017, on Defendant’s Amended Motion for Attorney’s Fees and Costs filed February 21, 2017. Having reviewed and considered Defendant’s Amended Motion, argument of counsel for the parties, the applicable law, and being otherwise fully advised, the Court finds:
Defendant seeks attorney’s fees and costs pursuant to Florida Statutes section 768.79, 627.428, 57.041, and 86.081, as well as Florida Rule of Civil Procedure 1.442. With regard to section 768.79 and Rule 1.442, Defendant seeks attorney’s fees and costs related to the service of a Proposal for Settlement on July 16, 2016 that Plaintiff rejected. Florida Statutes section 768.79 provides for application “[i]n any civil action for damages.” “When determining whether a complaint alleges an action for damages or one for equitable relief, Florida courts ‘look[ ] to whether the “real issue” is one for damages’ or equitable relief.” Polk County v. Highlands-in-the-Woods, L.L.C., __So. 3d __, 2017 WL 2199067 *2 (Fla. 2d DCA May 19, 2017) [42 Fla. L. Weekly D1135c] (citing National Indemnity Company of the South v. Consolidated Insurance Services, 778 So. 2d 404, 408 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D291a]). The Court finds that the “real issue” in this action is the determination of insurance coverage in particular a dispute over alleged material misrepresentation related to the policy), not a request for money damages. This case is most analogous to the situation in National Indemnity, and is distinguishable from the situations in Highlands-in-the-Woods and DiPompeo Construction Corporation vs. Kimmel & Associates, Inc.
Additionally, the Court finds that section 627.428 does not provide a basis for attorney’s fees to be awarded to the Defendant in this action.
The Court does however find that the Defendant is entitled to costs under Florida Statutes section 86.081, which allows the Court to award costs in declaratory judgment actions “as are equitable.”
Based on the foregoing, it is therefore ORDERED and ADJUDGED
1. Defendant’s Amended Motion for Attorney’s Fees and Costs is DENIED as it relates to an award of attorney’s fees in this action.
2. Defendant’s Amended Motion for Attorney’s Fees and Costs is GRANTED as it relates to an award of reasonable and equitable costs in this action. The Court reserves ruling as to the amount of costs.
