In Goldman v. United Services Automobile Association, 244 So. 3d 310 (Fla. 4th DCA 2018), review dismissed, No. SC18-1309, 2018 WL 3831364 (Fla., August 8, 2018), a Florida intermediate appellate court applied the Supreme Court of Florida's admonition that "bad faith" is simply not required to assess an insured's attorney's fees under the Florida Statutes.
In Goldman, the appellate court pointed out the crux of the matter in its view: The carrier in that case, a first-party carrier, acted appropriately and promptly but was deprived of even the opportunity to disclaim coverage.
The insurance policy at issue in the case was a homeowner's policy. The policyholders' damage claim to coverage under their homeowner's policy came out of a plumbing leak. The carrier investigated the claim, issued a check, and then "[w]ithout informing their insurer that they disputed the amount of the payment, the homeowners filed a lawsuit for breach of the insurance policy." Goldman v. United Services Automobile Association, 244 So. 3d 310, 311 (Fla. 4th DCA 2018), review dismissed, No. SC18-1309, 2018 WL 3831364 (Fla., August 8, 2018).
The carrier was served with the policyholders' suit papers. It filed a motion to compel an appraisal. The result of the appraisal was an award to the policyholders. The appellate court observed that the carrier "timely paid the appraisal award." For that reason as well, the trial court granted the carrier's motion for summary judgment against the homeowners'-policyholders' alleged claim that the carrier had breached the homeowner's policy in that case. Goldman v. United Services Automobile Association, 244 So. 3d 310, 311 (Fla. 4th DCA 2018), review dismissed, No. SC18-1309, 2018 WL 3831364 (Fla., August 8, 2018).
The appellate court affirmed:
Here, the insurer valued the loss and paid the claim based on that valuation. The homeowners did not object. Until the filing of the complaint, the insurer was unaware of a disagreement with the damage valuation. Once informed, the insurer demanded appraisal and paid the appraisal.
There was never a breakdown in the claims adjusting or communications process, nor was there a refusal to pay the claim. “It is only when the claims adjusting process breaks down and the parties are no longer working to resolve the claim within the contract, but are actually taking steps that breach the contract, that the insured may be entitled to an award of fees under section 627.428, Florida Statutes.”
Goldman v. United Services Automobile Association, 244 So. 3d 310, 311 (Fla. 4th DCA 2018), review dismissed, No. SC18-1309, 2018 WL 3831364 (Fla., August 8, 2018).
Following the Supreme Court's admonition that an award of attorney's fees does not mean bad faith in Florida, and of course because there was no bad faith shown on the record of the case before it, the appellate court followed the law that holds that "it is the incorrect denial of benefits that triggers an award of attorney's fees under section 627.428," at least against a first-party carrier like the homeowner's carrier in the Goldman case. Goldman v. United Services Automobile Association, 244 So. 3d 310, 312 (Fla. 4th DCA 2018), review dismissed, No. SC18-1309, 2018 WL 3831364 (Fla., August 8, 2018).
The moral of this story is a simple one, really: As a practice point in presenting the law, practitioners should be sensitive to how their presentation appears to their audience for attorney's fees, i.e., the trial judge, because judges naturally resist being led where they do not need or perhaps want to go. "[H]ere, the insured never gave the insurer the opportunity to incorrectly deny the benefits before filing a lawsuit." Goldman v. United Services Automobile Association, 244 So. 3d 310, 311 (Fla. 4th DCA 2018), review dismissed, No. SC18-1309, 2018 WL 3831364 (Fla., August 8, 2018).
To illustrate this practice point, the appellate court and the trial court were in complete agreement in this particular case that the homeowners'-policyholders' lawsuit "'was merely a preemptive lawsuit intended to obtain attorney's fees for the usual efforts in negotiating an insurance claim.'" Goldman v. United Services Automobile Association, 244 So. 3d 310, 311-12 (Fla. 4th DCA 2018), review dismissed, No. SC18-1309, 2018 WL 3831364 (Fla., August 8, 2018). "Here, the circuit court found that was the exact reason the lawsuit was filed. Thus, the court properly granted summary judgment in favor of the insurer." Goldman v. United Services Automobile Association, 244 So. 3d 310, 312 (Fla. 4th DCA 2018), review dismissed, No. SC18-1309, 2018 WL 3831364 (Fla., August 8, 2018).
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