4 Fla. L. Weekly Supp. 524a
Insurance — Personal injury protection — Error to deny attorney’s fees and costs incurred by insured in connection with injured party’s PIP claim where insurer initially denied coverage and filed third-party complaint against its insured seeking declaration that there was no coverage due to alleged misrepresentations on application, but subsequently voluntarily dismissed its suit against insured and settled with claimant for full amount claimed under policy
DAVID J. SWYGERT, Appellant, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, a Corporation, Appellee. 20th Judicial Circuit in and for Lee County. Case No. 94-2380 AP. L.T. Case No. 93-1840 CC. Opinion issued October 29, 1996. Appeal from the County Court for Lee County; John S. Carlin, Judge. Counsel: Brian C. Blair, Fort Myers, for Appellant. Cora C. Molloy, Fort Myers, for Appellee.
(ANDERSON, Circuit Judge.) We have for review a series of orders entered by the trial court, each of which serves as the linchpin for an argument by one side or the other that this Court lacks appellate jurisdiction. Without engaging in an esoteric discussion of the correct procedural path to be taken under the circumstances, suffice it to say that the parties to this appeal know its subject matter and that the issues relevant thereto have been adequately preserved for review.
The facts are uncontroverted. Javaris Dean, a minor, was struck and injured by an automobile owned by Appellant, David Swygert, and operated by his daughter, Karen Swygert. Dean filed two suits as a result of the accident, one in circuit court for compensatory damages and the other (this action) in county court for personal injury protection (“PIP”) benefits against Swygert’s insurer, Progressive American Insurance Company (“Progressive”).
Progressive filed a counterclaim against Dean and a third party complaint against David Swygert for declaratory relief which claimed no coverage for the accident due to an alleged misrepresentation by Swygert on his insurance application. In essence, Progressive alleged that Swygert should have disclosed that his daughter was a resident of his household and therefore an additional driver under the policy. When Progressive denied coverage, Swygert retained private counsel to defend both the liability and PIP suits because Progressive did not provide counsel under the insurance policy.
Progressive eventually filed a voluntary dismissal of the action against Swygert and settled with Dean for the full amount claimed under the policy. Swygert’s motion for attorney’s fees and costs to recover expenses in defending the suits was denied.
The trial court also entered an order which imposed sanctions against the Swygerts for their failure to appear at duly scheduled depositions. Swygert appeals both rulings. For the reasons stated below, we affirm the award of sanctions but reverse on the issue of entitlement to fees and costs.
The trial court apparently denied Swygert’s motion for attorney’s fees and costs because the declaratory judgment statute, Chapter 86 of the Florida Statutes, does not provide for an award of attorney’s fees to the prevailing party. However, the trial court failed to consider the import of Florida Statute § 627.428, which provides for an award of attorney’s fees to an insured who prevails in litigation against his insurance company. Swygert was an insured under the policy in question, and as such, Progressive had a duty to defend him. Instead of doing so, Progressive filed a lawsuit against him, thus requiring him to retain an attorney to defend the suit and the PIP claim as well.
Swygert ultimately “recovered” against Progressive when it paid Dean under Swygert’s policy. See, Preuss v. United States Fire Insurance Company, 414 So. 2d 249 (Fla. 4th DCA 1982); Tropic Park Inc. v. United States Fidelity & Guarantee Co., 357 So. 2d 253 (Fla. 3d DCA 1978); Town & Beach Plumbing Co. v. American Fire & Casualty Co., 157 So. 2d 700 (Fla. 3d DCA 1963). See also, State Farm Fire & Casualty Co. v. Palma, 629 So. 2d 830 (Fla. 1993).
In conclusion, the court should have granted Swygert’s motion for attorney’s fees and costs with regard to the PIP claim. We find no error in the trial court’s imposition of sanctions against Swygert for discovery violations. We therefore REVERSE and REMAND to the lower court for a determination of attorney’s fees and costs to the Appellant.
AFFIRMED in part, REVERSED in part and REMANDED. (BROUSSEAU, and CASANUEVA, JJ., concur.)
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