This is an appeal from an order denying attorney fees under section 627.428 Florida Statutes (2008), in an action for property loss benefits under an automobile insurance policy. The ruling, which was entered even though the insurer settled the case for the full amount claimed, was based on the notion that the action had been premature and unnecessary and was thus not effective in securing the favorable result. See JPG Enterprises, Inc. v. Viterito, 841 So.2d 528, 530 (Fla. 4th DCA 2003) ("A prevailing party is entitled to recover only fees which are `reasonably expended.' Fla. Patient's Comp. Fund v. Rowe, 472 So.2d 1145, 1151 (Fla.1985)."); State Farm Florida Ins. Co. v. Lorenzo, 969 So.2d 393, 398 (Fla. 5th DCA 2007) ("Courts generally do not apply the confession-of-judgment doctrine, which supports awarding attorney fees under statute governing award of fees to insureds in insurance coverage actions, where the insureds were not forced to sue to receive benefits; applying the doctrine would encourage unnecessary litigation by rewarding a race to the courthouse for attorney fees even where the insurer was complying with its obligations under the policy."); Garcia v. Lumbermens Mut. Ins. Co., 246 So.2d 574, 574 (Fla. 3d DCA 1971) ("[I]nterest and attorneys' fees will not be awarded where there is no necessity to institute suit to confirm or collect an arbitration award under an uninsured motorist provision in an automobile liability policy."). This conclusion was in turn based on the finding that the insured had improperly refused to submit to and complete an appropriate and contractually required pre-suit examination under oath. See Lorenzo, 969 So.2d 393 (finding fees improper where insured sued without complying with policy conditions). We disagree with the result below and the premise upon which it was based and therefore reverse.
The controversy began when someone stole a truck owned by De Leon and insured by Great American. When it was recovered, it had been damaged and, most significantly, was missing nine large, valuable tires. As shown by Great American's payment of the entire claim, there was never a legitimate defense under the personal property section of his policy. Unfortunately, however, the carrier apparently decided to use the usual policy provision requiring a sworn statement as a license to make unwarranted and intrusive inquiries into the personal life of any insured who has the temerity to make a claim against it. At the statement, where De Leon appeared without counsel, Great American's lawyer, Luis A. Diz, did not even get to the truck and the tires. Instead, he insisted on probing into the details of, among other things, a prior, totally unrelated criminal conviction,
With complete justification, De Leon declined
The appellee's position is based on the argument that
This is completely wrong; because De Leon "refused" to respond to wholly impertinent and improper questions which had nothing to do with the merits of the claim. And we think he was right to do so. To hold in these circumstances, as did the trial court, that it was not necessary to file the action and thus that section 627.428 is inapplicable, is to turn reality upon its head. What actually happened is that De Leon took Diz up on his challenge (and the propriety of his conduct of the sworn statement) and sued the company because, as was obvious, there was no other way to be paid. So far from being improperly employed, the statute was enacted for the very purpose presented by this case—to discourage the games insurance companies play. See Beverly v. State Farm Florida Ins. Co., 50 So.3d 628, 633 (Fla. 2d DCA 2010) ("[A]n insurer's post-suit payment of additional policy proceeds entitles the insured to section 627.428 attorney's fees where the insurer `wrongfully caus[ed] its insured to resort to litigation in order to resolve a conflict with its insurer when it was within the company's power to resolve it.' See Clifton [v. United Cas. Ins. Co. of Am., 31 So.3d 826, 829 (Fla. 2d DCA 2010)] (citing First Floridian Auto & Home Ins. Co. v. Myrick, 969 So.2d 1121, 1124 (Fla. 2d DCA 2007)); see also Hill, [v. State Farm Florida Insurance Co., 35 So.3d 956, 960-61 (Fla. 2d DCA 2010)]; Goff, [v. State Farm Florida Insurance Co., 999 So.2d 684, 688 (Fla. 2d DCA 2008)]."); see also Pepper's Steel & Alloys, Inc. v. U.S., 850 So.2d 462, 465 (Fla. 2003) ("[t]he statute's [section 627.428] purpose `is to discourage insurance companies from contesting valid claims, and to reimburse insureds for their attorney's fees incurred when they must enforce in court their contract with the insurance company.' Bell v. U.S.B. Acquisition Co., 734 So.2d 403, 411 n. 10 (Fla.1999)."); New York Life Ins. Co. v. Lecks, 122 Fla. 127, 165 So. 50, 54 (1935); Underwood Anderson & Associates, Inc. v. Lillo's Italian Restaurant, Inc. 36 So.3d 885, 888 (Fla. 1st DCA 2010) ("[T]he courts have often stated to be the purpose of the attorney's fee statute, which is to encourage insurance companies to pay when they are presented with valid claims and, failing that, to compensate insureds that are forced to litigate their contracts with improperly recalcitrant insurance companies.").
We cannot permit Great American to escape the consequences of what it tried to get away with in this case. Because the
Reversed and remanded.
SHEPHERD, J., concurring.
This court recently admonished "
An attorney is an officer of the court, and he plays his role badly, even outside the courtroom, if he trespasses against the obligations of his professional responsibilities. See Georgopoulos v. Int'l Bhd. of Teamsters, AFL-CIO, 942 F.Supp. 883, 905 (S.D.N.Y.1996). A careful review of the transcript of the second EUO reveals the role played by counsel during that EUO was performed just like the first— badly. As in the first EUO, counsel's misunderstanding of the permissible range of inquiry in a sworn statement taken to verify a simple theft loss, whatever might have been the insurer's suspicions, was palpable. Upon a review of the
With these additional observations, I fully join in the well-reasoned opinion of the court.
