5 Fla. L. Weekly Supp. 142b
Attorney’s fees — Insurance — Personal injury protection — Insured who prevailed in action against insurer not entitled to attorney’s fees where insured failed to properly plead entitlement to fees — Pleading which failed to state specific authority for fees not sufficient — Even if insured’s references to Motor Vehicle No-Fault Law satisfied requirement that party from whom fees are sought have some form of notice, record does not reveal any evidence that insurer undertook any affirmative conduct or committed any specific act which could have led insured to believe that there was no disputed issue as to her entitlement to attorney’s fees — Insurer’s failure to file motion for more definite statement in response to general prayer for fees or its failure to file motion to strike fee claim did not amount to acquiescence or recognition of claim
U.S. SECURITY INSURANCE COMPANY, Appellant, vs. JUANA OLGA MARQUEZ, Appellee. 11th Judicial Circuit in and for Dade County, Appellate Division. Case No. 96-310 AP. Date filed November 7, 1997. An appeal from County Court, Roger A. Silver, Judge, in and for Dade County, Florida. Counsel: David B. Pakula, and Michael A. Nuzzo, for Petitioner. Moises Kaba, III, for Respondent.
(Before MAYNARD GROSS, JERALD BAGLEY, AND ROBERT PINEIRO, JJ.)
(BAGLEY, J.) U.S. Security Insurance Company, defendant below, appeals a County Court Final Order awarding Olga Marquez, plaintiff below, her attorney’s fees arising out of a lawsuit she brought against U.S. Security for unpaid personal injury protection (PIP) benefits she applied for after she was involved in a car accident. As liability is not at issue in this appeal,1 the sole issue for review is whether, under the attendant circumstances, Marquez should have been awarded her attorney’s fees incurred in bringing the action against U.S. Security. We conclude that she is not entitled to an award of attorney’s fees and reverse the lower court’s order.
It is clear by statute, and therefore uncontested by both parties herein, that in instances where an insured prevails in an action brought against an insurer, the insurer shall be held accountable for the fees incurred by the insured for bringing such action. See, 627.736(8), Fla. Stat & 627.428(1), Fla. Stat. The issue in this appeal, however, concerns the extent of the interrelation between these statutes and the general rules of procedure governing pleading for attorney’s fees.
As a general rule of procedure, “a claim for attorney’s fees, whether based on statute or contract, must be pled.” Stockman v. Downs, 573 So. 2d 835, 837 (Fla. 1991). However, the Stockman court recognized an exception to this general rule:
[w]here a party has notice that an opponent claims entitlement to attorney’s fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement, that party waives any objection to the failure to plead a claim for attorney’s fees.
573 So. 2d at 838, (citations omitted) (emphasis supplied).
In paragraph nine of her original complaint, Marquez asserted that:
Because of Defendant’s refusal to pay the Plaintiff’s losses, it has become necessary that Plaintiff is obligated to pay a reasonable fee for the attorney’s services in bringing this action, plus necessary costs.
Additionally, in a “Wherefore” clause, Marquez alleged that, “[Marquez] demands judgment against [U.S. Security] for all covered losses with interest on any overdue payments, attorney’s fees and costs, and jury trial of all issues so triable.”
The crux of U.S. Security’s argument here on appeal is that under Stockman and its progeny, Marquez’s prayer for attorney’s fees (paragraph nine and the “Wherefore” clause) was not legally sufficient and thus Marquez should not have been awarded her attorney’s fees.
Preliminarily, Marquez argues that Stockman is not controlling authority. Citing Wollard v. Lloyds and Companies of Lloyds, 439 So. 2d 217 (Fla. 1983), Marquez argues that she is entitled to her attorney’s fees as a matter of law because, under Wollard, an insurer’s settlement payment to an insured serves as the functional equivalent of a confession of judgment or a verdict in favor of the insured. While conceding that Wollard stands for this proposition, it is simply not relevant to the instant matter. Essentially, Wollard stands for the proposition that an insurer cannot attempt to get around the statute authorizing the payment of an insured’s attorney’s fees by settling a case before it reaches a final disposition, i.e., a judgment or a jury verdict. Hence, Wollard does not address, as is the issue here, the legal ramifications of a settlement or a verdict vis-a-vis an insured’s failure to plead or properly plead her entitlement to attorney’s fees in the first instance. Stockman essentially does, and is therefore applicable.
Marquez’s attorney’s fees pleading failed to state the specific authority (i.e., the actual statutory provision) on which such fees were recoverable. As such, Marquez’s request was, at most, general; and, under Stockman, it has been subsequently held that such general requests do not satisfy the pleading requirements for attorney’s fees. Univision Holdings, Inc. v. Ramos, 638 So. 2d 130 (Fla. 3d DCA 1994); Green v. Sun Harbor Homeowners’ Assn, 685 So. 2d 23 (Fla. 4th DCA 1996).
Moreover, we agree with U.S. Security that the Stockman exception has not been satisfied here. In order to satisfy the Stockman exception, two things must be shown. It must be shown that the party from whom attorney’s fees are sought had some form of notice (albeit insufficient notice under the primary Stockman mandates) and that the party by its conduct recognized or acquiesced to the claim for fees or otherwise failed to object to the seeking party’s failure to plead such entitlement.
As to the first issue of notice pursuant to the Stockman exception, Marquez argues that, as a whole, her references to the Florida Motor Vehicle No-Fault Law in paragraph four of her original complaint (which, by subsequent cross referencing, provides for an award of attorney’s fees for the prevailing party), paragraph 9, and the “Wherefore” clause is sufficient to satisfy this requirement. U.S. Security concedes this (the first exception requirement), but argues that the exception is still inapplicable because U.S. Security subsequently did not commit any act which either recognized or acquiesced to the claim (the second exception requirement).
The record below does not reveal any evidence that U.S. Security undertook any affirmative conduct or committed any specific act which could lead Marquez to believe that there was no disputed issue as to Marquez’s entitlement to attorney’s fees. See, Taylor v. T.R. Properties, Inc. Of Winter Park, 603 So. 2d 1380 (Fla. 5th DCA 1992). We disagree with Marquez’s argument that U.S. Security, in response to the general prayer for fees, should have filed either a motion for a more definite statement, or a motion to strike the fee claim, and that its failure to do so constitutes acquiescence or recognizance, thus triggering the Stockman exception. We believe that the onus to plead correctly should remain on the pleader and that such responsibility should not be shifted to the responding party to point out any deficiencies. Taylor, 603 So. 2d at 1381 (“[i]t would have assisted the court if Taylor had moved to strike … that part of the motion for summary judgment that requested the fees, but he was not burdened by such a requirement) (Emphasis supplied).
Accordingly, the lower court’s order awarding attorney’s fees to Marquez is reversed.
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1The case was settled and did not proceed to trial.
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