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Mercury Insurance Co. of Florida v. Cooper11/23/2005
Before WELLS, SHEPHERD, and CORTIÑAS, JJ.
The plaintiff, Mercury Insurance Company of Florida ("Mercury"), appeals an order granting the insured/defendant, Cletus Cooper ("Cooper"), attorney's fees pursuant to Section 627.428, Florida Statutes (2004).
In November 2002, Cooper rented a van, which collided with another vehicle driven by Aldor Charles ("Charles"). Cooper was the sole authorized driver of the van and Mercury, Cooper's primary automobile insurer, was responsible for claims regarding the rental vehicle under the policy terms. Initially, Cooper told Mercury that Agatha Cooper was driving the van at the time of the accident but later, under oath, stated that his sister, Tanya Rolle, who was unlicensed, was the actual driver.
In June 2003, Charles made a claim to Mercury and demanded the $25,000 policy limit as an alternative to filing suit. Mercury then filed a declaratory judgment action to determine its rights and duties under the insurance policy. However, while the declaratory action was pending, Mercury decided to settle Charles' claim and pay him $2,500 as full settlement. Mercury did not negotiate a global settlement, which could have included a reservation of rights concerning attorney's fees. After settling with Charles, Mercury filed a voluntary dismissal of its declaratory judgment action. Cooper's counsel then filed a motion for attorney's fees under section 627.428(1), which was granted by the trial court.
After the trial court had granted the motion for attorney's fees, Mercury filed a motion for reconsideration on the ground that Cooper had been arrested for insurance fraud. The trial court held a hearing on the motion for reconsideration and denied the motion, citing to Florida cases holding that, where an insurance company settles a claim and dismisses a related declaratory judgment action, the provisions of section 627.428(1) are triggered, thus entitling the insured's counsel to attorney's fees under the statute.
Section 627.428(1) provides:
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.
§ 627.428(1), Fla. Stat. (2004). Florida courts have held that this attorney's fees statute is triggered where an insurance company settles a claim and voluntarily dismisses a related declaratory judgment action without qualifying or limiting the dismissal. Unterlack v. Westport Ins. Co., 901 So. 2d 387 (Fla. 4th DCA 2005); O'Malley v. Nationwide Mut. Fire Ins. Co., 890 So. 2d 1163 (Fla. 4th DCA 2004). In Unterlack, the Fourth District stated that it was irrelevant whether the settlement preceded the dismissal or vice-versa. Unterlack, 901 So. 2d at 389. The Unterlack court held that the attorney's fees provision in section 627.428(1) is triggered when the voluntary dismissal of the declaratory judgment action and settlement are related to each other. Id.
Actual rendition of an order or decree is not required to trigger an insured's entitlement to attorney's fees under the statute. See Wollard v. Lloyd's & Cos. of Lloyd's, 439 So. 2d 217, 218 (Fla. 1983). In interpreting the purpose of section 627.428, the Florida Supreme Court in Wollard reasoned that:
he statutory obligation for
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