8 Fla. L. Weekly Supp. 340a
Insurance — Title insurance — Attorney’s fees — Error to enter summary judgment in favor of insureds on claim for attorney’s fees for period between date insureds notified insurer of claim and date insurer appointed counsel pursuant to insurance policy and for period following appointment of counsel when, at advice of insurer’s counsel that there was conflict of interest, insureds sought advice from separate counsel — Factual issues existed as to date insurer first appointed counsel, whether there was unreasonable delay in appointment of counsel, and whether, under circumstances, insureds were in fact entitled to attorney’s fees under policy provisions — Remand for further proceedings
ATTORNEY’S TITLE INSURANCE FUND, INC., Appellant, v. JEFFREY A. PRUSSIN and JUDITH M. PRUSSIN, Appellees. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 00-153-AP. County Court Case No. 99-13648 CC (05). Opinion filed March 20, 2001. An appeal from a final order of the County Court in and for Miami-Dade County. Marvin H. Gillman, Judge. Counsel: Javier J. Rodriguez, for Appellant. Steven Naturman and Cary A. Lubetsky, for Appellees.
(Before JERALD BAGLEY, STANFORD BLAKE, AND THOMAS M. CARNEY, JJ.)
(BAGLEY, J.) Attorney’s Title Insurance Fund, Inc. (Fund), seeks reversal of an order issued by the trial court. The Order denied the Fund’s motion for summary judgment and instead granted summary judgment in favor of the Prussins, the non-moving party.
This case involves a dispute over the responsibility of payment for attorneys fees arising under a title insurance policy taken out by the Prussins (appellees) from Attorney’s Title Insurance Fund, Inc. (Fund) (appellants). Subsequent to the issuance in January, 1998, of a policy by the Fund to the Prussins in regard to a parcel of real property located in Miami-Dade County, litigation involving issues of foreclosure and a fraudulent subordination agreement ensued between the Prussins, the City of Miami (who had a previously recorded mortgage on the property which had allegedly been subordinated to the interest of the Prussins), and Downtown Investment, Inc. (who had prompted the litigation when it defaulted on a loan received from the Prussins in exchange for a first mortgage on the property). Upon the institution of foreclosure proceedings brought against them by the City of Miami, the Prussins put the Fund on notice of the claim.
There are two distinct periods in which the Prussins paid attorneys’ fees that are the issue of dispute in this case. The first period of contention involves the incurment of $459.00 of attorneys’ fees during the period between which the Prussins notified the Fund of the claim and the Fund’s appointment of defense counsel pursuant to the insurance policy (from June 1, 1998 to either July 17, 1998 or July 17, 1999). Following the appointment by the Fund of Keith Mack, LLP as counsel for the Prussins, said appointed counsel advised the Prussins that there was a conflict of interest in the representation and that the Prussins should seek advice from separate counsel. The Prussins did in fact seek separate counsel and incurred an additional $4,937.00 in attorneys’ fees.
The substantive issue in this case is whether the Fund is responsible for the payment of these fees pursuant to the insurance policy. The relevant provision of the policy reads:
4. Defense and Prosecution of Actions; Duty of Insured Claimant to Cooperate (a) Upon written request by the insured and subject to the options contained in Section 6 of these Conditions and Stipulations, THE FUND, at its own cost and without unreasonable delay, shallprovide for the defense of an insured in litigation in which any third party asserts a claim adverse to the title or interest as insured, but only as to those stated causes of action alleging a defect, lien, or encumbrance or other matter insured against by this policy. THE FUND shall have the right to select counsel of its choice (subject to the right of the insured to object for reasonable cause) to represent the insured as to those stated causes of action and shall not be liable for and will not pay the fees of any other counsel. THE FUND will not pay any fees, costs, or expenses incurred by the insured in the defense of those causes of action which allege matters not insured against by this policy. (emphasis added)
Although contrary to the rules of procedure and a judicial preference that a supporting motion be filed, a trial judge may grant summary judgment to a non-moving party if it finds that as a matter of law the non-moving party is entitled to summary judgment. See Carpineta v. Shields, 70 So. 2d 573 (Fla. 1954). On the other hand, there is an abundance of cases which hold that it is improper for the trial court to enter summary judgment against a party that has not been noticed and in contravention of the rules of procedure. See, e.g., Groeber v. Heuring, 690 So. 2d 1343 (Fla. 3d DCA 1997). Additionally, due process requires that before a summary judgment is authorized to be entered in favor of a non-moving party, it must be shown that the other party has had a full and fair opportunity to meet the proposition that there is no genuine issue of material fact and that the party for whom the summary judgment is rendered is entitled thereto as a matter of law. See John K. Brennan Co. v. Central Bank & Trust Co., 164 So. 2d 525 (Fla. 2d DCA 1964). A due process issue exists in the instant case because it is unclear from the record whether the Fund had a full and fair opportunity to defend against the trial court’s sua sponte entry of summary judgment in favor of the Prussins; the trial court’s order makes no finding that the Fund did in fact have such an opportunity.
When a trial court grants final summary judgment, the role of a reviewing court is to determine only whether the granting of the summary judgment was proper. See Moore v. Morris, 475 So. 2d 666 (Fla. 1985). The classic inquiry in reviewing the propriety of a summary judgment is whether or not there remain any genuine issues of material fact. See Fletcher v. Petman Enterprises, Inc., 324 So. 2d 135 (Fla. 3d DCA 1975). If not, the remaining question is whether summary judgment was based on a proper application of the law. See Smith v. Perry, 635 So. 2d 1019 (Fla. 1st DCA 1994). If any issue of fact exists and the slightest doubt remains, a summary judgment cannot be granted. See Moore, supra, at 668. Despite the presumption of correctness which attaches to an order of the trial court, the reviewing court must draw every possible inference in favor of the party against whom summary judgment was entered. See Wills v. Sears, Roebuck & Co., 351 So. 2d 29 (Fla. 1977).
The trial judge’s finding in paragraph 2 of the Order granting summary final judgment in favor of the Prussins that there are no genuine issues of material fact is contradicted by the record. There are genuine issues of material fact as to whether the Fund is responsible for the payment of the Prussins’ attorneys’ fees pursuant to the insurance policy. Even though it is generally for the court to determine the extent of coverage under an insurance policy, the jury must determine whether an insured’s loss falls within the terms of the policy. See Drisdom v. Guarantee Trust Life Ins. Co., 371 So. 2d 690 (Fla. 3d DCA 1979); State Farm Fire & Casualty Co. v. Lichtman, 227 So. 2d 309 (Fla. 3d DCA 1969).
Additionally, the trial court should have been more cognizant of the two distinct periods in which the Prussins paid attorneys’ fees that are the issue of this case. In terms of the first period, based on the parties’ pleadings and motions, there is a dispute over whether the Fund appointed counsel for the Prussins in July 1998 or July 1999. Thus, whether there was an “unreasonable delay” (to use the words of the policy) in the Fund’s appointment of counsel appears to be an issue in dispute as well. The second period in which the Prussins incurred attorneys’ fees, following the appointed counsel’s opinion that a conflict existed and that the Prussins should seek separate counsel, is arguably of a different nature than the first in terms of whether the insurance policy would cover such fees. There are genuine issues of material fact for both periods as to whether the Fund is responsible for the payment of the Prussins’ attorneys’ fees pursuant to the insurance policy. Based on several unresolved factual disputes relating to the responsibility of payment for attorney’s fees (in general the conflicting claims contained in the parties’ pleadings, affidavit, and motions, in particular the unreasonable delay issue arising from the discrepancy in the date on which counsel was appointed by the Fund, and the fact that the testimony of the original appointed counsel was not available to the trial court because said counsel had not been deposed), the trial court’s entry of summary final judgment was improper.
Accordingly, it is ORDERED and ADJUDGED that the County Court’s entry of summary judgment in favor of the Prussins is REVERSED and that this case is REMANDED for further proceedings consistent with this opinion. (BLAKE and CARNEY, JJ., concur.)
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