26 Fla. L. Weekly Supp. 744a
Online Reference: FLWSUPP 2609MILLInsurance — Uninsured motorist — Bad faith claim — Attorney’s fees — Insured who was subject to jury award exceeding policy limits on claim for UM benefits and thereafter settled claim for bad faith against insurer is not entitled to attorney’s fees for time spent in furtherance of underlying action for UM benefits — Insured is not entitled to recover attorney’s fees for time spent litigating amount of fees to be awarded
AMY MILLING, Plaintiff, v. TRAVELER HOME AND MARINE INSURANCE COMPANY, Defendant. Circuit Court, 13th Judicial Circuit in and for Hillsborough County, Circuit Civil Division. Case No. 12-CA-017307. Division H. October 25, 2018. E. Lamar Battles, Judge. Counsel: Dale Swope and Stephanie Miles, Swope Rodante, Tampa; and Matthew Powell, Matt Law, Tampa, for Plaintiff. Lewis F. Collins, Jr. and Matthew J. Lavisky, Butler Weihmuller Katz Craig LLP, Tampa, for Defendant.
ORDER DENYING PLAINTIFF’S MOTIONFOR SUMMARY JUDGMENT FOR ENTITLEMENTTO ATTORNEY’S FEES AS PART OF PLAINTIFF’S TOTALBAD FAITH DAMAGES AND GRANTING DEFENDANT’SCROSS-MOTION FOR SUMMARY JUDGMENT
THIS MATTER came before the Court for hearing on October 16, 2018, on (1) Plaintiff, Amy Milling’s (“Plaintiff”), Motion for Summary Judgment for Entitlement to Attorney’s Fees as part of Plaintiff’s Total Bad Faith Damages filed March 21, 2018, and (2) Defendant, Traveler Home and Marine Insurance Company’s (“Defendant”), Cross-Motion for Summary Judgment filed May 14, 2018. After a review of the motions, response, the record, argument of counsel, and applicable law, the Court finds as follows:
This case involves a claim for uninsured/underinsured (“UM”) benefits. After a jury award exceeding policy limits, Plaintiff brought a claim for bad faith against Defendant that was soon settled. Plaintiff now seeks attorney’s fees for both the bad faith litigation and underlying litigation, including: Category 1: time spent in furtherance of the underlying action for UM benefits under Florida Statutes §§ 627.727(10)1 and 624.155(8)2; Category 2: time spent establishing the amount of attorney’s fees to be awarded for the work of MattLaw in the underlying action for UM benefits; Category 3: time spent after the entry of the Partial Final Judgment entered on March 15, 2018; and Category 4: time spent to obtain the Partial Final Judgment. Defendant does not dispute that Plaintiff is entitled to some attorney’s fees for Category 4.
Regarding Category 1, Defendant argues that the reasoning in Novak v. Safeco Insurance Company of Illinois, 615CV215ORL41DCI, 2016 WL 8849018 (M.D. Fla. Nov. 18, 2016), report and recommendation adopted, 615CV215ORL41DCI, 2017 WL 1552091 (M.D. Fla. May 1, 2017) and Lender v. Geico General Insurance Company, 09-22303-CIV, 2014 WL 12805694 (S.D. Fla. Oct. 31, 2014), and Florida Statute § 627.727(8)3 preclude Plaintiff’s recovery of these fees. Defendant further argues that the interpretation of the law proposed by Plaintiff would render Florida Statute § 627.727(8) meaningless. Regarding Categories 2 and 3, Defendant argues that Florida law prohibits Plaintiff from receiving “fees for fees.” The Court agrees with Defendant’s positions as to all categories.
Category 1: The Court finds that Novak and Lender are, indeed, well-reasoned, compelling, and persuasive. The court in those cases rejected the argument that a plaintiff can recover attorney’s fees in a UM bad faith lawsuit for time spent in furtherance of the underlying action for UM benefits. Novak, 2016 WL 8849018, at **9, 10 (“[This interpretation] would result in a ruling rendering Fla. Stat. § 627.727(8) meaningless in a case where attorney fees are recoverable under Fla. Stat. § 627.727(10).”); Lender, 2014 WL 12805694, at *3. Thus, Defendant is entitled to summary judgment on this issue and Plaintiff cannot recover attorney’s fees for this category. § 627.727(8), Fla. Stat.; Novak, 2016 WL 8849018, at **9, 10; Lender, 2014 WL 12805694, at *3.
Categories 2 and 3: Although Plaintiff’s entitlement to attorney’s fees is not contested, Plaintiff seeks to recover attorney’s fees for time spent establishing the amount of fees to be awarded. Florida law is clear that Plaintiff may not recover “fees for fees.” State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830, 833 (Fla. 1993); Oquendo v. Citizens Prop. Ins. Corp., 998 So. 2d 636, 637 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D2737a]; United Auto. Ins. Co. v. Miami Med. Group Inc., 935 So. 2d 41, 43 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D1930a]; Palm Beach Polo Holdings, Inc. v. Stewart Title Guar. Co., 132 So. 3d 858, 862 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D139a]. Accordingly, Defendant is entitled to summary judgment on this issue as well and Plaintiff cannot recover attorney’s fees for these categories. See id.
It is therefore ORDERED and ADJUDGED that
1. Plaintiff’s Motion for Summary Judgment for Entitlement to Attorney’s Fees as part of Plaintiff’s Total Bad Faith Damages is DENIED.
2. Defendant’s Cross-Motion for Summary Judgment is GRANTED. Plaintiff cannot recover attorney’s fees for Category 1: time spent in furtherance of the underlying action for UM benefits, excluding time spent directly in furtherance of the bad faith claim; Category 2: time spent establishing the amount of fees to be awarded for the work of MattLaw in the underlying action for UM benefits; or Category 3: time spent after the entry of the Partial Judgment on March 15, 2018.
3. This Court reserves jurisdiction to determine the amount of attorney’s fees to be awarded to Plaintiff for time spent in Category 4 prosecuting the bad faith claim under Florida Statute § 627.727(10) and obtaining the March 15, 2018 Partial Final Judgment, including filing the Civil Remedy Notice and negotiating with defense counsel on the terms of the Partial Final Judgment and the June 22, 2018 Stipulation and Acknowledgement.
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1“The damages recoverable from an uninsured motorist carrier in an action brought under s. 624.155 shall include the total amount of the claimant’s damages, including the amount in excess of the policy limits, any interest on unpaid benefits, reasonable attorney’s fees and costs, and any damages caused by a violation of a law of this state.” § 627.727(10), Fla. Stat.
2“The damages recoverable pursuant to this section shall include those damages which are a reasonably foreseeable result of a specified violation of this section by the authorized insurer and may include an award or judgment in an amount that exceeds the policy limits.” § 624.155(8), Fla. Stat.
3That statute provides, “[t]he provisions of s. 627.428 do not apply to any action brought pursuant to this section against the uninsured motorist insurer unless there is a dispute over whether the policy provides coverage for an uninsured motorist proven to be liable for the accident.” § 627.727(8), Fla. Stat.
