6 Fla. L. Weekly Supp. 16a
NOT FINAL VERSION OF OPINION
Subsequent Changes at 6 Fla. L. Weekly Supp. 155c
Insurance — Automobile — Exclusions — Rental vehicles — Where parties had stipulated that rental by insured was for three day period and that insured was on vacation, additional facts concerning whether three day rental constituted rental for regular use, which would have constituted exception to stipulation, are speculations not affecting court’s ability to grant summary judgment — Summary judgment determining insurance coverage in favor of insured affirmed — Attorney’s fees — No error in awarding attorney’s fees to insured, because there was an acquiescence when insured continued to prosecute his claim for fees — Although claim for attorney’s fees under “applicable Florida statute” does not appear to be adequate pleading, insurer had notice that attorney’s fees were sought, and it took no steps to further inquire or move for more definite pleading
U.S. Security Insurance Company, Appellant, vs. Louis Smith, Appellee. 11th Judicial Circuit in and for Dade County, Appellate Division. Case Nos. 96-233 AP & 96-403 AP. County Court Case No. 95-2797 CC25. Opinion filed September 28, 1998. Appeal from a Final Judgment of the County Court, Jeffrey D. Swartz, Judge. Counsel: David B. Pakula of Kubicki Draper and Fazio, Dawson, DiSalvo, Dannon, Abers & Podreca and Robert L. Schimmel of Hessen, Schimmel & De Castro P.A., for appellant and Alan Jay Atlas of Alan Jay Atlas, P.A., for appellee.
(Before STEVEN D. ROBINSON, PHILIP BLOOM, LAWRENCE A. SCHWARTZ, JJ.)
(STEVEN D. ROBINSON, Judge.) In case number 96-233 AP, U.S. SECURITY INSURANCE COMPANY (Security) appeals from a Summary Judgment determining insurance coverage in favor of the plaintiff LOUIS SMITH (Smith). In consolidated case number 96-403 AP, Security appeals from a final order awarding attorney’s fees to Smith in this action. We affirm.
The trial court awarded a Summary Judgment based on Smith’s coverage under Security’s automobile policy. Security had asserted that an exclusion in the policy protected it. That exclusion read:
We do not provide Liability coverage:
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3. For any person [f]or damage to property rented to, used by, or in the care of that person. This exclusion does not apply to damage to a residence or private garage. It also does not apply to damage to any of the following type vehicles not owned by or furnished or available to the regular use of you or any family member:
a. private passenger autos. . .
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9. For the ownership, maintenance or use of any vehicle, other than your covered auto, which is owned by you or furnished or available for your regular use.
Security relies on Union American Ins. Co. v. Perez, 597 So. 2d 819 (Fla. 3d DCA 1964), which states as an alternative to its primary holding that this provision did not cover a rental vehicle under similar circumstances.
Security asserts that Summary Judgment was inappropriate because Smith’s rental might not have been “regular” but temporary. The parties had stipulated to the facts. The salient ones were that the rental by Smith was for a three day period and that he was on vacation. The trial court found that a three day vacation period was not a rental furnished for regular use. Security asserts on appeal that Smith was required to demonstrate more, for example, that three days meant that he actually used the vehicle for only three rental days and that he did not regularly use rental vehicles. Smith correctly points out that these additional facts, which would have constituted exceptions to the stipulation, are speculations not affecting the court’s ability to grant summary judgment. See Krouse v. Avis Rent-A-Car System, Inc., 459 So.2d 1132 (Fla. 3d DCA 1984).
On the issue of attorney’s fees Security relies on the case of Stockman v. Downs, 573 So.2d 835 (Fla. 1991). That case stands for the principle that attorney’s fees may not be awarded unless specially pled, stipulated or acquiesced to. Smith had alleged entitlement to fees in his complaint under the “applicable Florida statute.” Though this does not appear to be adequate pleading under Stockman, Security still had notice that attorney’s fees were sought, and it took no steps to inquire further. Security certainly could have moved for a more definite pleading or taken other steps. Perhaps it did not do so because it well knew the statute number that plaintiffs generally rely on in claims against insurance companies, section 627.428(1), Florida Statutes. We found one case charging that a knowledgeable party should have knowledge of the specific applicable statute when only a general statutory claim for attorney’s fees had been pled. E.g. Department of Health & Rehabilitative Services v. Crossdale, 585 So. 2d 481, 482 n.1 (Fla. 4th DCA 1991).
Here Smith took the additional step of making a motion for an attorney’s fee award, albeit after the trial court awarded summary judgment but before the court heard Security’s motion for rehearing. At no time did Security object to Smith’s lateness. In fact it stipulated that live testimony of expert witnesses would not be necessary. Not until the attorney’s fee hearing did Security raise an objection. Smith argues that if timely raised he could have moved to amend and clarify his pleadings. See Dealers Insurance Co. v. Haidco Investment Enterprises, Inc., 638 So. 2d 127 (Fla. 3d DCA 1991). Security argues that it might have settled had it “known” before the Summary Judgment hearing that an award of attorney’s fees was sought under section 627.428(1). We hold that under the unique facts of this case there was an acquiescence when the plaintiff continued to prosecute his claim for fees.
In addition, Smith’s motion for appellate fees is granted, the amount to be determined by the trial court.
AFFIRMED. (BLOOM and CARDONNE, JJ. concur.)
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