In Johnson v. Omega Ins. Co. No. SC14–2124, 2016 WL 5477795 (Fla. September 29, 2016) (not released for publication in permanent law reports and subject to revision or withdrawal until released), the Florida Supreme Court held that an award of attorney's fees to a policyholder or other prevailing insured under Florida Statute § 627.428 is available regardless of proof of insurer bad faith.
Rejecting the arguments made by the carrier on appeal against long-standing precedent in Florida insurance law, the Court ratified the settled law that so long as the insured prevails, including when a wrongful disclaimer of coverage is litigated by the insured and the carrier, then the Florida Statute makes an attorney's fees award available:
Because the precedent in this area of law clearly rejects a bad faith or maliciousness requirement and the court below relied on distinguishable jurisprudence, we decline to construct an additional hurdle of bad faith for insureds to overcome. Therefore, consistent with the opinions of this Court and others, we make abundantly clear today that in the context of section 627.428, a denial of benefits simply means an incorrect denial.
Johnson v. Omega Ins. Co. No. SC14–2124, 2016 WL 5477795, at *7 (Fla. September 29, 2016).
This is a very polite way of stating the obvious. In Florida, Section 627.428 continues to operate just as it has for decades, allowing a prevailing party an opportunity to recover its attorney's fees in an action against an insurance company, such as over coverage, whether you like it or don't like it.
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