A sobering reminder about timely moving for attorneys fees in declaratory judgment actions was issued by the Fourth District Court of Appeal. In Cardillo v. Qualsure Insurance Corp., out of the 4th DCA on February 20, 2007, the court determined a fairly innocuous "Order" which established insurance coverage–but left issues of liaiblity and damages set for a jury trial–was a "judgment" for purposes of Fla. R. Civ. P. 1.525.
Cardillo was initially sued for personal injury. The defendant insured then filed a liability claim with his insurance company. The insurance company contested coverage and its duty to defend. The insurance company then sought a declaratory judgment of its rights and obligations pursuant to section 86.011, Florida Statutes.
On December 1, 2004, the trial court entered an order titled "Findings of Fact – Conclusions of Law-And Order Regarding Trial." In the order, the trial court stated that certain claims of the insured remain pending in the underlying litigation, but based upon the Court’s findings of fact and conclusions of law, those issues were no longer "outcome determinative" of the declaratory decree action. In paragraph four of the trial court’s order, the court determined that insurance coverage existed under the policy. Next, the order announced that "[a]ll remaining issues of liability and damages" proceed to a jury trial set the following month; "[a]ll stays previously entered . . . are lifted and all counsel advised to be fully ready to commence trial." The order then simply concluded that it is "DONE AND ORDERED."
After various procedural posturings, and upon request, the trial court entered a "judgment," which stated that the " Order rendered on December 1, 2004 is a Final Judgment, for which let execution issue, if appropriate."
On February 17, 2005, the insured filed a motion for attorney’s fees pursuant to section 627.428, Florida Statutes.
The question before the appellate court was whether the December 1st order constituted a final order or judgment which would start the 30 day time limit in Fla. R. Civ. P. 1.525. The court stated that Rule 1.525 applies equally, regardless of whether the time runs from a document titled "order," "final order," "judgment," or "final judgment," as long as the document is a final resolution of the rights and obligations of the parties. The court then concluded that the December 1st order was a final order regard the dec action, stating:
"Patently, it was the intent of the trial court that nothing further should stand as an obstacle to concluding the underlying case and that the declaratory issues were ‘disposed of.’ The language of the order is more than sufficient to alert counsel that the clock is ticking as to a fee motion."
Since Fla. R. Civ. P. 1.525 is no longer construed as requiring a party to move for attorneys fees after a judgment is entered (For clarification of this issue, including effect of the 2005 amendment and interpretation of the Rule pre-amendment) see Barco v. School Board of Pinellas County, 2008 WL 321469 (Fla. Feb. 7, 2008)), and since nothing prohibits a party from moving for attorneys fees before a judgment is actually entered (Barco, above), it would be prudent to file a motion for attorneys fees within 30 days of any order that could be construed as being dispositive of insurance coverage.