Allen v. State Farm Florida Insurance Co. , 209 So. 3d 11 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
WAYNE ALLEN and SUSAN ALLEN, )
)
Petitioners, )
)
v. ) Case No. 2D15-3114
)
STATE FARM FLORIDA INSURANCE )
COMPANY, )
)
Respondent. )
___________________________________ )
Opinion filed August 17, 2016.
Petition for Writ of Certiorari to the Circuit
Court for Pasco County; Kimberly Sharpe
Byrd, Judge.
George A. Vaka and Richard N. Asfar of
Vaka Law Group, P.L., Tampa, and
Kenneth C. Thomas and Barbara M.
Hernando of Marshall Thomas P.L.,
Tampa, for Petitioners.
Scot E. Samis of Traub Lieberman Straus
& Shrewsberry LLP, St. Petersburg, for
Respondent.
ORDER ON PETITIONERS' MOTION FOR REHEARING OR,
ALTERNATIVELY, CLARIFICATION OF ORDER DENYING
PETITIONERS' AMENDED MOTION FOR ATTORNEY'S FEES
SILBERMAN, Judge.
Upon consideration of Petitioners' Motion for Rehearing or, Alternatively,
Clarification of Order Denying Petitioners' Amended Motion for Attorney's Fees filed by
Wayne and Susan Allen and the response filed by State Farm Florida Insurance
Company to that motion for rehearing, we grant the Allens' motion to the following
extent. We vacate our previous order of June 10, 2016, that denies the Allens'
amended motion for appellate attorney's fees and enter this order that conditionally
grants appellate attorney's fees to the Allens as explained below.
This court granted certiorari relief to the Allens in Allen v. State Farm
Florida Insurance Co., 41 Fla. L. Weekly D1389 (Fla. 2d DCA June 10, 2016). The
Allens sought appellate attorney's fees conditioned upon their prevailing in the trial court
on remand on the basis of section 627.428(1), Florida Statutes (2010). Section
627.428(1) provides as follows:
(1) Upon the rendition of a judgment or decree by any of the
courts of this state against an insurer and in favor of any
named or omnibus insured or the named beneficiary under a
policy or contract executed by the insurer, the trial court or,
in the event of an appeal in which the insured or beneficiary
prevails, the appellate court shall adjudge or decree against
the insurer and in favor of the insured or beneficiary a
reasonable sum as fees or compensation for the insured's or
beneficiary's attorney prosecuting the suit in which the
recovery is had.
(Emphasis added.) State Farm contended that the Allens were not entitled to a
provisional grant of fees because the proceeding was not an appeal but a petition for
writ of certiorari, relying upon Grider-Garcia v. State Farm Mutual Automobile, 14 So. 3d
1120 (Fla. 5th DCA 2009). In Grider-Garcia, the Fifth District determined that an
appellate court was unauthorized to grant fees under section 627.428(1) when the
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insured was not the prevailing party before the appellate court. Id. at 1122. In doing so,
the Fifth District stated as follows:
Given the courts' narrow interpretation of the language of
section 627.428, it appears that this Court is not authorized
to grant fees to an insured who does not succeed in his or
her application for certiorari. Indeed, it is doubtful that an
insured would even be entitled to fees for a certiorari
proceeding in which it prevails based on the interpretation of
the statute that appellate courts are authorized to award fees
only for an appeal that the insured wins.
Id. (emphasis added). State Farm readily concedes that the emphasized language
above is dicta, but asserts that we should rely upon it, along with the general proposition
that section 627.428(1) is to be strictly construed. See Brass & Singer, P.A. v. United
Auto. Ins. Co., 944 So. 2d 252, 254 (Fla. 2006) (determining that "under the plain
language of section 627.428(1), an appellate court may not award attorney's fees to an
insured unless the insured prevails on appeal").
Rather than rely on the dicta in Grider-Garcia, we follow the explicit
holding of the Florida Supreme Court in Home Insurance Co. v. Drescher, 220 So. 2d
902, 903 (Fla. 1969).1 There, the court considered the predecessor of section 627.428,
section 627.0127, which had been amended in 1967 to add the language at issue here
providing for fees to an insured who prevails on appeal. See id. (citing ch. 67-400,
Laws of Fla.). Our supreme court clearly stated, "[W]e hold that attorneys' fees may be
awarded under the amended statute for services in the appellate court, whether on
direct appeal or in certiorari proceedings, in all cases where the notice of appeal is filed
1
And, of course, it has long been recognized that a district court's decision
cannot overrule a decision by the Florida Supreme Court. See Hoffman v. Jones, 280
So. 2d 431, 440 (Fla. 1973).
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subsequent to July 27, 1967." Id. The Florida Supreme Court has continued to approve
fee awards under section 627.428(1) in certiorari proceedings. See Advanced
Chiropractic & Rehab. Ctr., Corp. v. United Auto. Ins. Co., 140 So. 3d 529, 536-37 (Fla.
2014) (holding that a motion for attorney's fees pursuant to section 627.428(1) that was
filed six days after the appellate court granted certiorari relief was timely and remanding
for a determination of the amount of attorney's fees to which the insured was entitled).
To allow fees in the appellate court whether the proceeding is a direct
appeal or a petition for writ of certiorari also comports with the purpose of the statute.
"[T]he purpose of section 627.428 is to discourage insurers from contesting valid claims
and to reimburse successful insureds for their attorney's fees when they are compelled
to defend or sue to enforce their policy rights." Liberty Nat'l Life Ins. Co. v. Bailey ex rel.
Bailey, 944 So. 2d 1028, 1030 (Fla. 2d DCA 2006); see also Pawtucket Mut. Ins. Co. v.
Manganelli, 3 So. 3d 421, 423 (Fla. 4th DCA 2009) (recognizing that the purpose of
section 627.428 is to penalize an insurer for wrongfully requiring its insured to litigate to
resolve a conflict). If the purpose of the statute is to be achieved, it is illogical to grant
fees to a successful insured who files a direct appeal but to deny fees to a successful
insured who files a certiorari petition.
Therefore, we vacate our prior order of June 10, 2016, that denies
attorney's fees. We grant the Allens' amended motion for attorney's fees in an amount
to be set by the trial court, conditioned upon the Allens ultimately prevailing in the trial
court.
LaROSE and LUCAS, JJ., Concur.
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