2003

28 Fla. L. Weekly S626a

Attorney’s fees — Insurance — Surety on performance bond — Section 627.428 authorizes recovery of attorney’s fees in excess of performance bond’s face amount from a subcontractor’s surety when fees claimant has not shown independent misconduct on part of surety — Statute unambiguously mandates that surety pay its obligee’s attorney’s fees upon rendition of judgment against it, and there is no other statute that limits attorney’s fees liability of sureties under a performance bond — Case is distinguishable from prior decision in Nichols v. Preferred National Insurance Co., because that case dealt with guardianship surety

28 Fla. L. Weekly D1404a

Attorney’s fees — Offer of judgment — Insurance — Personal injury protection — An insurer may recover attorney’s fees under rule 1.442 and section 768.79 in an action brought by its insured to recover under a personal injury protection policy — Question certified — Validity of offer — In case at issue, insurer’s proposal for settlement was defective in form and content under rule 1.442 because proposal required that insured execute a “general release,” of all “claims, causes of action, etc., that have accrued through the date” on which insured accepted the proposal, and this release would have extinguished separate outstanding claim for uninsured motorist benefits which was not a part of instant case — Because intent of release condition could not be determined without resort to clarification or judicial interpretation, it was not sufficiently particular to comply with rule — Error to award attorney’s fees to insurer

28 Fla. L. Weekly D1884b

Insurance — Uninsured motorist — Attorney’s fees — No error in allowing costs and interest taxable in excess of UM policy limits — Issue relating to award of prejudgment interest not preserved for review — Sanctions — Although trial court acted within its discretion in sanctioning insurer for violation of court’s discovery orders, trial court erred in striking insurer’s opposition to plaintiffs’ attorney’s fees claim under offer of judgment statute as sanction — Because plaintiffs’ demand for judgment was untimely, it was void from its inception — Remand for consideration of any alternative sanctions trial court may deem appropriate

28 Fla. L. Weekly D2471a

Insurance — Personal injury protection — Attorney’s fees — Offer of judgment — Section 768.79, Florida Statutes, applies to cases brought pursuant to section 627.736, Florida Statutes, and to cases pending in small claims court — Question certified: May an insurer recover attorney’s fees under rule 1.442, Florida Rules of Civil Procedure, and section 768.79, Florida Statutes, in an action by its insured to recover under a personal injury protection policy?

28 Fla. L. Weekly S740a
863 So. 2d 210

Attorney’s fees — Offer of judgment — Insurance — It is error to use contingency risk multiplier in awarding attorney’s fees pursuant to offer of judgment statute — Because attorney’s fees awarded under the offer of judgment statute are sanctions against the party against whom the sanction is levied, the statute and rule must be strictly applied — Rule of Civil Procedure 1.442 does not include the use of a multiplier as a factor to be considered in the award of attorney’s fees as sanctions

28 Fla. L. Weekly D2461d

Attorney’s fees — Insurance — Insolvent insurers — Rehabilitation and liquidation — Where receiver successfully established claim to funds at issue, trial court was without discretion to deny receiver an award of reasonable attorney’s fees

28 Fla. L. Weekly D2275a

Insurance — Group health — Attorney’s fees — Trial court properly determined that because group health policy was delivered out of state, attorney’s fees were not recoverable by insured who prevailed in suit against insurer for insurance coverage — Delivery of certificate of insurance to which were attached several amendatory endorsements required by Florida was not the equivalent of delivery of full policy in Florida

NOT FINAL VERSION OF OPINION
Subsequent Changes at 29 Fla. L. Weekly D85a

28 Fla. L. Weekly D2443b

Insurance — Insolvent insurers — Florida Insurance Guaranty Association — Attorney’s fees — Error to award insured attorney’s fees and costs against FIGA where awards do not qualify as “covered claims” — Where insurer wrongfully refused to defend insured in action against insured, insured filed declaratory judgment seeking determination that policies provided coverage for claims against insured and that insurer had duty to defend insured, insurer was declared insolvent and FIGA was substituted as successor in declaratory judgment action, and insured prevailed in underlying action after insured had incurred attorney’s fees and costs in that action, FIGA was erroneously found liable for fees and costs incurred by insured in defending underlying action — FIGA was not liable for attorney’s fees and costs arising out of insolvent insurer’s breach of duty to defend because such damages were not within the coverage of the policy — Because FIGA did not affirmatively deny a covered claim, FIGA is not responsible for fees and costs incurred by insured in prosecuting declaratory judgment action

28 Fla. L. Weekly D679a

Insurance — Personal injury protection — Arbitration — Attorney’s fees — Trial court improperly entered final summary judgment for insurer denying attorney’s fees to medical provider assignee, in assignee’s action to recover interest on late PIP claim payments, on grounds that insurer had tendered payment of the interest due and assignee had incurred no attorney’s fees between the time arbitration was ordered and the time the interest payment was tendered — The payment of PIP benefits before action was taken in the ordered arbitration proceeding was “equivalent to a confession of judgment” and entitled the provider assignee to a fee award — The fact that the statute under which the insurer had moved to compel arbitration was ruled unconstitutional by the Florida Supreme Court before arbitration proceedings began does not change the provider’s entitlement to a fee because any dispute which leads to a judgment against the insurer in favor of the insured or insured’s assignee creates an entitlement to attorney’s fees

28 Fla. L. Weekly D2664c

Attorney’s fees — Insurance — Justiciable issues — Where insurer undertook defense of personal injury action against restaurant franchisor under reservation of right to withdraw its defense in the absence of a duty to defend, and insurer was granted summary judgment in its declaratory judgment action seeking declaration that franchisor was not an additional insured under insurance policy, insurer was not entitled to award of attorney’s fees for its defense of franchisor in underlying suit because the reservation of rights did not reserve rights to attorney’s fees and costs — Error to award attorney’s fees to insurer under section 57.105 in declaratory judgment action where franchisor’s position was not wholly unsupported by facts at any time before final summary judgment in that action — Defense in declaratory judgment action was not so completely lacking in merit as to support finding that position was frivolous