In Download Government Employees Insurance Co. v. King (Fla. 2d DCA Case No. 2D09.4742, en banc Opinion Filed 05.06.11) PUBLIC ACCESS STATED NOT FINAL, also published as 2011 WL 1709825 (Fla. 2d DCA May 6, 2011)(en banc)(authorized password required to access Westlaw), the entire Florida Second District Court of Appeal came to the same conclusion on rehearing. Unfortunately, its opinion was not entirely transparent.
The Court dealt a blow to the practice of Trial Courts entering "contingent judgments" and of Florida Appellate Courts approving them -- although the Second District had previously approved the practice and in this case, did not define exactly what it had in mind when it wrote about "contingent judgments". It is clear from the context of the decision, however, that what the Court had in mind in this case was the practice by which Trial Courts have entered Judgment for Insurance Policy Limits, reserved jurisdiction to determine attorney's fees and costs at a later time, and proceed thereafter to "conduct a hearing on attorneys' fees" even though there was no determination of "bad faith and there was no legal basis at the time of the judgment for an award of fees." Id. at *2. [Emphasis added.] Apparently the "contingency" of the attorney's fees Judgment was that the Plaintiffs would prevail on a claim that would entitle them to attorney's fees. See id.
In this UIM Case, the Court had previously affirmed a Judgment entered, not for actual damages sustained, but for the amount of the UIM Policy Limits, i.e., "based on the $25,000 in insurance coverage." Id. at *1. Since there was no denial of the Insurance Coverage, and since the proposal of settlement was in an amount greater than the judgment obtained and on appeal, the original Second District panel denied the Plaintiffs'-Appellees' motion for appellate attorney's fees. Id. at *1.
In the course of the underlying case, the Plaintiffs had "each made a proposal for settlement in the amount of $100,000." Id. The Plaintiffs argued that the Second District should allow the entry of a "contingent judgment" for appellate attorney's fees if they should later prove entitlement to them.
The Second District, well, demurred. It certainly declined to agree with the Plaintiffs' position but it left open the possibility that the Trial Court might award appellate attorney's fees if the Trial Court determined that they were recoverable damages in an action for Bad Faith. The Court held:
The damages in a bad faith action involving underinsured motorist coverage are specified in section 627.727(10), Florida Statutes (2009)[unchanged in the official 2010 publication]. If attorneys' fees for this appeal are an element of damages under the language of that statute, an issue we do not decide today, those damages are awardable under section 627.727(10), not under section 768.79 [the Florida settlement proposal or offer of judgment statute, also unchanged in the official 2010 publication]. It is the finder of fact in the subsequent lawsuit that is entitled to determine the amount of those fees. We are aware of no legal authority granted to this court or the trial court to predetermine those fees for the trier of fact in the subsequent lawsuit.
Id. at *3.
In sum and in substance, the en banc Second District Court of Appeal (1) disapproved the entry of judgments in an amount certain, contingent on the party seeking attorney's fees later proving that it is entitled to attorney's fees and (2) held that only Fla. Stat. § 627.727(10) governs the awardability of attorney's fees if the Plaintiff prevails in a Bad Faith action, not Fla. Stat. § 768.79, the settlement proposal/offer of judgment statute. The whole of the en banc panel agreed with these legal conclusions, withheld its approval of any "contingent judgment" for the appellate fees in this case, granted rehearing to the extent of the above substituted holding, and denied the Plaintiffs'-Appellees' motion for appellate attorney's fees. Id.
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