8 Fla. L. Weekly Supp. 596b
Attorney’s fees — Insurance — Personal injury protection — Trial court correctly denied insureds’ motions for attorney’s fees where insureds did not plead specific statute which would entitle them to fees as insureds suing their insurer, and insurer did not acquiesce, recognize, or otherwise fail to object to insureds’ failure to correctly plead their entitlement to fees
Certiorari granted; remanded for award of fees at 27 Fla. L. Weekly D1672c
ISABEL BETANCOURT & YEILYN GARCIA, Appellants, vs. U.S. SECURITY INSURANCE CO., INC., Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 99-417 AP. Filed July 24, 2001. An appeal from the County Court, Nancy Pollock, Judge, in and for Miami-Dade County. Counsel: Thomas J. Morgan, Jr., for Appellant. Christopher J. Lynch, for Appellee.
(Before ARTHUR L. ROTHENBERG, SANDY KARLAN AND ROSA RODRIGUEZ, JJ.)
(KARLAN, J.) In companion cases, the Appellants, Isabel Betancourt and Yeilyn Garcia, mother and daughter, brought suit below against the Appellee, U.S. Security Insurance Company, Inc., alleging breach of contract for the Appellee’s failure to pay certain personal injury protection benefits (PIP) under two insurance policies. In a non-jury trial, the Appellants prevailed and subsequently moved for their attorney’s fees. The lower court denied fees, finding that the appellants had failed to properly plead their entitlement.
Currently, Betancourt and Garcia appeal the lower court’s ruling denying fees, asserting that their complaint, contrary to the lower court’s finding, did properly plead entitlement to fees or, alternatively, that the requirement was waived by the Appellee. The Appellee argues that the lower court was correct in denying the fees.
We agree with the Appellee and affirm.
Paragraph seven (7) of the appellants’ complaint alleged the following:
[t]hat because of the Defendant’s refusal to pay the claims, it has become necessary that the Plaintiff retain the services of the undersigned attorneys, and the Plaintiff is obligated to pay them a reasonable fee for the services of bringing this action, plus the costs incident thereto.
Furthermore, in a demand clause, the complaint also alleged that:
[w]herefore Plaintiff demands judgment against the Defendant, U.S. Security Insurance Company, a Florida insurer, for the losses . . . [,] together with interest thereon, attorney’s fees and court costs.
The general rule with respect to entitlement to attorney’s fees was stated in the seminal case of Stockman v. Downs, 573 So. 2d 835 (Fla. 1991). Stockman held that “a claim for attorney’s fees, whether based on statute or contract, must be pled. Failure to do so constitutes a waiver of the claim.” Stockman, 573 So. 2d at 838.
This general rule, however, has been subsequently interpreted as requiring the pleader to plead the specific and correct statute allowing for the attorney’s fees. See Dealers Ins. v. Haidco Inv. Enterprises, 638 So. 2d 127, 130 (Fla. 3d DCA 1995) (“For those reasons, the supreme court held `that a claim for attorney’s fees, whether based on statute or contract, must be pled.’… This necessarily means that the requesting party must plead the statutory or contractual basis on which that party seeks attorney’s fees.”); Tucker v. Ohren, 739 So. 2d 684, 685 (Fla. 4th DCA 1999) (“Hence, Ohren’s failure to specifically plead the statutory grounds is fatal to the fee claim.”); United Pacific Ins. Co. v. Berryhill, 620 So. 2d 1077, 1079 (Fla. 5th DCA 1993) (“In order to be entitled to attorney’s fees, a party seeking them must plead the correct entitlement.”); U.S. Security Ins. Co. v. Marquez, 5 Fla. L. Weekly Supp. 142b, 143 (11th Cir. Nov. 7, 1997) (“As such, Marquez’s request was, at most, general; and, under Stockman, it has been subsequently held that general requests do not satisfy the pleading requirements for attorney’s fees. The specific statutory or contractual provision has to be pled in order to comply with the mandates of Stockman.”).
However, Stockman recognized an exception to the general rule that attorney’s fees must be pled. The court stated that:
[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.
Stockman, 573 So. 2d at 838.
The Appellants concede that, in pleading for attorney’s fees, they did not plead the specific statute which would entitle them to fees as insureds successfully suing their insurer; i.e., §627.428, Florida Statutes. Thus, is it clear that the only way that fees could or should have been awarded to the Appellants was pursuant to the Stockman exception.
Two things must be shown in order to satisfy the Stockman exception:
[i]t 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.
Marquez, 5Fla. L. Weekly Supp. at 143. The Stockman court cited two earlier cases as illustrative of the exception: Brown v. Gardens by the Sea S. Condo Ass’n, 424 So. 2d 181 (Fla. 4th DCA 1984) and Mainlands of Tamarac by Gulf Unit No. Four Ass’n, Inc. v. Morris, 388 So. 2d 226 (Fla. 2d DCA 1980). In Brown, the court found that the defendant’s failure to plead or raise entitlement to attorney’s fees was not fatal, given the plaintiff’s pretrial statement which listed defendant’s entitlement as an issue. And in Mainlands, the parties’ stipulation during trial that the issue of attorney’s fees would be heard subsequent to a final hearing permitted recovery of fees notwithstanding the fact that fees had not been pled. In these cases, it is clear that the parties against whom fees were sought had some form of notice and, secondly, recognized or acquiesced to the claims. See also Storob v. Sphere Drake Ins., 730 So. 2d 375 (Fla. 3d DCA 1999) (Insurer’s agreement to include in final judgment a provision stating that the court reserved jurisdiction as to fees, which had not been initially pled by the insureds, fell within the Stockman exception).
In determining whether the exception applies here, even conceding that U.S. Security had some form of notice as to the Appellants’ claim of entitlement to fees1 (the first prong of the Stockman exception), it cannot be said, however, that U.S. Security acquiesced or recognized, or otherwise failed to object to the Appellants’ failure to correctly plead their entitlement. Indeed, in answering the Appellants’ complaint below, U.S. Security specifically denied paragraph seven (7) and the demand clause, those portions of the complaint referencing attorney’s fees. Furthermore, after the trial was over, when the Appellants moved the lower court for a determination of attorney’s fees and costs, U.S. Security moved to strike the motion. These actions undertaken below by U.S. Security do not amount to an acquiescence or a recognition of the Appellants’ fee claims. The case at bar is easily distinguishable from the scenarios in Brown, Mainlands and Storob.
Hence, as the Appellants did not plead the specific statute entitling them to fees required under Stockman, nor did the Stockman exception apply, the lower court was correct in denying the Appellants’ motions for fees.
Affirmed.
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1To this extent, the Appellants, in their brief, allege that letters were sent between the parties, hearings were set and reset, time sheets were prepared and telephone conversations were held, all regarding attorney’s fees.
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