4 Fla. L. Weekly Supp. 822b
NOT FINAL VERSION OF OPINION
Subsequent Changes at 6 Fla. L. Weekly Supp. 72a
Attorney’s fees — Insurance — Party prevailing in action against insurer
UNION AMERICAN INSURANCE COMPANY, Appellant, vs. ISMAEL LOPEZ, Appellee. 11th Judicial Circuit in and for Dade County, Appellate Division. Case No. 96-142 AP. Opinion filed July 16, 1997. An appeal from the County Court for Dade County, Roger A. Silver, Judge. Counsel: Arthur J. Morburger, for appellant. Mark J. Feldman, for appellee.
(Before ESQUIROZ, BLOOM and LOPEZ, JJ.)
AFFIRMED.
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(ESQUIROZ, J., dissenting.) I respectfully dissent because in my view, appellee Lopez did not prevail against appellant Union American Insurance Company in the court below, and therefore is not entitled to recover attorney’s fees as the “prevailing party” pursuant to Section 627.428, Florida Statutes (1997). Appellee Lopez recovered after trial only the exact amount of appellant’s pre-suit offer. Thus, whether correctly or not from the standpoint of the amount awarded, the trial court entered judgment in favor of Lopez for no more than appellant insurer had offered to pay under the policy before suit was even filed. See, e.g., Florida Life Insurance Co. v. Fickes, 613 So.2d 501 (Fla. 5th DCA 1993); Westinghouse Electric Corporation v. Shafer & Miller, Inc., 515 So.2d 248 (Fla. 3d DCA 1987); Greenough v. Aetna Casualty & Surety Company, 449 So.2d 1001 (Fla. 4th DCA 1984); Waters v. State Farm Mutual Automobile Insurance Company, 393 So.2d 1203 (Fla. 2d DCA 1981). It is also my view that the Florida Supreme Court’s decision in Danis Industries Corporation v. Ground Improvement Techniques, Inc., 645 So.2d 420 (Fla. 1994), does not call for a different result. Indeed, in Danis, the court acknowledged that:
. . . [A] prevailing insured or beneficiary is one who has obtained a judgment greater than any offer of settlement previously tendered by the insurer. Danis, 629 So.2d at 987. Absent that, the insured or beneficiary is entitled to no fee award.
Danis Industries Corporation v. Ground Improvement Techniques, Inc., 645 So.2d at 421.
I would therefore reverse the lower court’s award of attorney’s fees to appellee Lopez against appellant Union American Insurance Company.
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