6 Fla. L. Weekly Supp. 72a
Attorney’s fees — Insurance — Insured not entitled to award of attorney’s fees as prevailing party in action against insurer where insured recovered after trial the exact amount of insurer’s pre-suit offer
UNION AMERICAN INS. CO., Appellant, vs. ISMAEL LOPEZ, Appellee. 11th Judicial Circuit, in and for Dade County, Appellate Division. Case No. 96-142 AP. Opinion filed October 23, 1998. An Appeal from County Court for Dade County, Roger A. Silver, Judge. Counsel: Arthur J. Morburger, for appellant. Mark J. Feldman, for appellee.
(Before MARGARITA ESQUIROZ, PHILLIP BLOOM, and PETER R. LOPEZ, JJ.)
ON REHEARING
[Original Opinion at 4 Fla. L. Weekly Supp. 822b]
(MARGARITA ESQUIROZ, J.) We grant appellant’s motion for rehearing and we substitute the following opinion in place of our original opinion.
Appellant, Union American Insurance Company (“Union”), seeks review of the Final Judgment entered below awarding attorney’s fees to appellee Ismael Lopez (“Lopez”), and against appellant Union American Insurance Company. We reverse.
We hold that 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 filed. See, e.g., Mendez v. Bankers Ins. Co., 696 So. 2d 1210, 1211 (Fla. 4th DCA 1997); Florida Life Insurance Co. v. Fickes, 613 So. 2d 501, 504 (Fla. 5th DCA 1993); Westinghouse Electric Corporation v. Shafer & Miller, Inc., 515 So. 2d 248, 249 (Fla. 3d DCA 1987); Greenough v. Aetna Casualty & Surety Co., 449 So. 2d 1001, 1002 (Fla. 4th DCA 1984). The Florida Supreme Court’s decision in Danis Industries Corporation v. Ground Improvement Techniques, Inc., 645 So. 2d 420, 421 (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 that 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.
We therefore reverse the Final Judgment awarding attorney’s fees to appellee Lopez. (PHILLIP BLOOM, and PETER R. LOPEZ, JJ., concur.)
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