This is an interesting case where the insured sought attorneys fees and costs after the Florida insurance company filed a notice of voluntary dismissal of petition to appoint a umpire.
In Peraza v. Citizens Property Insurance, the appellate court reviewed the trial court’s denial of a motion to tax costs and attorneys fees.
The insured filed a claim with her Florida insurance company for windstorm damages her property sustained during Hurricane Wilma in October, 2005. As a result of the claim, the Insurer invoked the “appraisal clause” of her insurance policy. Each party appointed an appraiser, but the parties’ appraisers could not agree on an umpire. The appraisal clause in the insured’s policy contained a provision for petitioning the trial court to appoint an umpire. The Florida insurance company petitioned the trial court for appointment of an umpire, and the insured filed a response indicating her agreement to the court’s appointment. After the trial court entered its order appointing an umpire, the Florida insurance company filed a voluntary dismissal under Fla. R. Civ. P. 1.420.
As a result of the voluntary dismissal, the insured filed her motion to tax costs against the Florida Insurance company, including reasonable attorney’s fees. As grounds for the motion, the insured claimed entitlement to costs under Fla. R. Civ. P. 1.420(d) and attorneys fees under Section 627.428(1), Fla. Stat. The trial court denied the insured’s motion.
The Third District determined the insured’s motion should be granted regarding costs, but was rightly denied on the issue of attorney’s fees. The court held that once the Florida insurance company filed its voluntary dismissal, the
insured was entitled to recover her costs. The court cited the Florida Supreme Court’s language in Wilson v. Rose Printing Co. Inc., 624 So. 2d 257, 258 (Fla. 1993): “Rule 1.420(d) is unambiguous – costs are to be assessed in the action that is the subject of the voluntary dismissal….”
The trial court had agreed with the Florida insurance company that certain language in the insured’s policy precluded the recovery of costs under Rule 1.420: “[e]ach party will (a) pay its chosen appraiser; and (b) bear the other expenses of appraisal and umpire equally.” The appellate court, however, felt this language allocated the expenses for the appraisal process, but did not constituted a waiver of entitlement to court costs under Rule 1.420(d).
The Third District sustained the trial court’s ruling on attorney’s fees, however. Section 627.428(1), Fla. Stat. authorizes an award of attorney’s fees when an insured recovers “judgment” or a “decree” against an insurer.
The appellate court determined that the Florida insurance company Citizens filed a petition to appoint an umpire, and the insured requested the exact same relief. The trial court’s order granted the relief requested by both sides. Under these facts, the appellate court held the order was not a “judgment or decree” against the Florida insurance
company and for insured for purposes of the statute, and the insured did not meet the strict requirements of Section 627.428(1), Fla. Stat., to qualify for attorney’s fees.
The issue in this case should not be confused with the situation where an insurance company files a dec action on coverage or to void a policy, and then later dismisses. In those situations, the insured should be entitled to fees under 627.428. One thing to always consider whenever an insurer files a dec action on coverage is to file a counter-claim for coverage. This prevent the insurer from trying to divest the court of jurisdiction by simply dismissing the case.