In Grider-Garcia v. State Farm Mutual Automobile Insurance Company, ____ F.3d ____ (Fla. 5th DCA June 12, 2009), the insured sought a writ of certiorari to quash two orders rendered at the trial court level. The 5th DCA denied the requests for certiorari review, holding that the issues could be handled on a final appeal at the end of the case.
The Court then had to deal with the issue of whether the insured would be entitled to a "conditional" award of attorneys fees incurred in presenting the petition for certiorari contingent upon the insured ultimately winning the underlying case.
In reliance on Bass & Singer, P.A. v. United Automobile Insurance Co., 944 So.2d 252 (Fla. 2006), the 5th DCA ruled that the insured who is unsuccessful in a Petition for Certiorari can not recover attorneys fees for the Petition even if the insured ultimately wins the underlying case. Specifically, the Court held:
Given the [Supreme] court’s narrow interpretation of the language of section 627.428, it appears that this Court is not authorized to grant fees to an insured who does not succeed in his or her application for certiorari.
Equally, troubling for insureds is the following statement by the 5th:
indeed, it is doubtful that an insured would even be entitled to fees for a certiorari proceeding in which it prevails based on the interpretation of the statute that appellate courts are authorized to award fees only for an appeal that the insured wins.
Whether the court would actually refuse to conditionally grant attorneys fees to an insured who successfully pursue certiorari review remains to be seen. However, given this dictum, counsel for insureds – at least in the 5th DCA – had better think twice before filing a Petition for Certiorari unless it is absolutely necessary.
The insured in this case and in Brass & Singer, argued that such rulings violate the purposes behind 627.428 – to make the insured whole – but the courts rejected this argument.