40 Fla. L. Weekly D308a
“Additional Payments” provisions of policy, which provided that insurer would
pay all court costs charged to an insured in a covered lawsuit, insurer was
obligated to pay attorney’s fees assessed against its insured pursuant to offer
of judgment statute
MOHAMED AKBERALI KASSAM, Appellees. 5th District. Case No. 5D14-1437. Opinion
filed January 30, 2015. Appeal from the Circuit Court for Seminole County, Alan
A. Dickey, Judge. Counsel: Megan M. Hall and B. Richard Young, of Young, Bill,
Roumbos & Boles, P.A., Pensacola, for Appellant. Darren J. Elkind, of Paul,
Elkind & Branz, P.A., Deltona, for Appellees.
judgment ordering it to pay certain attorney’s fees for which its insured,
Mohamed Kassam, was primarily liable. We hold that the payment of attorney’s
fees was covered under the policy that Geico issued to Kassam and affirm.
appellees, Kassam and Kevin Hollingsworth. Kassam was insured by Geico under an
automobile insurance policy (“the Policy”). At some point during the litigation,
Hollingsworth served a proposal for settlement upon Kassam, proposing to settle
the case for $9,999.99. Kassam rejected the proposal.
amount of $16,603.24. Because the judgment exceeded the amount of the proposal
for settlement by more than twenty-five percent, Hollingsworth moved for
attorney’s fees under Florida Rule of Civil Procedure 1.442 and section 768.79,
Florida Statutes (“the Offer of Judgment Statute”).1 The court granted Hollingsworth’s request, and
entered an attorney fee judgment against Kassam in the amount of $113,175.00.
fee judgment and eventually obtained a writ of garnishment against Geico. The
trial court found that Geico was liable for the attorney’s fees under the
“Additional Payments” section of the Policy. That section provides, in pertinent
ADDITIONAL PAYMENTS WE WILL MAKE UNDER THE LIABILITY
. . . .
2. All court costs charged to an insured in a covered
seems to believe that a bright-line rule prohibits a plaintiff from ever
recovering attorney’s fees assessed against a defendant from the defendant’s
insurer if the fees were awarded based on a proposal for settlement. The
appellees, on the other hand, frame the issue as one of contractual
interpretation and insurance coverage; thus, they focus their argument on the
language of the Policy. We agree with the appellees; the real issue is whether
the Additional Payments section of the Policy covers the attorney fee judgment.
Accordingly, our review is de novo. See, e.g., Trout v. Apicella,
79 So. 3d 947, 948 (Fla. 5th DCA 2012).
section 768.79 attorney’s fees assessed against the opposing party from the
opposing party’s insurer when the insurer was not a party to the litigation and
was not served with the proposal for settlement. See Meyer v.
Alexandre, 772 So. 2d 627 (Fla. 4th DCA 2000); Sparks v. Barnes, 755
So. 2d 718 (Fla. 2d DCA 1999); Feltzin v. Bernard, 719 So. 2d 315 (Fla.
3d DCA 1998). Notably, this Court has not addressed this subject, and — for the
reasons that follow — it need not do so in this case.
distinguishable. Unlike the instant case, none of those cases discuss liability
under an insurance policy. In fact, in Sparks, the second district
explicitly observed that “the only conceivable source of a liability for
attorney’s fees to Barnes by Oak Casualty could only derive from the offer of
judgment statute.” Id. at 718 (emphasis added). Here, by contrast, the
trial court did not tax the attorney’s fees against Geico based solely on the
Offer of Judgment Statute; rather, it found that the attorney fee judgment was
explicitly covered by the Policy. We believe that Geico’s expansive
interpretation of the case law is overbroad and not supported by precedent.
Additional Payments section, which states that Geico will pay “all court costs
charged to an insured in a covered law suit.”
of the policy’s text. See, e.g., State Farm Mut. Auto. Ins. Co. v.
Menendez, 70 So. 3d 566, 569 (Fla. 2011). When language in a policy is
ambiguous, courts must resolve the ambiguity in favor of the insured by
“adopting the reasonable interpretation of the policy’s language that provides
coverage.” Id. at 570.
relied on Tri-State Insurance Co. of Minnesota v. Fitzgerald, 593 So. 2d
1118 (Fla. 3d DCA 1992). The insurance policy in that case, similar to the
Policy here, stated that the insurer would pay “in addition to the applicable
limit of liability: [A]ll costs taxed against the Insured, in any suit defended
by the Insurer(s).” The trial court ruled that a sanction, which included
attorney’s fees and was entered pursuant to Florida Rule of Civil Procedure
1.380, was not covered by this section of the policy. Id. at 1119. The
third district disagreed and reversed, holding that “the award in question falls
within this policy provision. Simply stated, it represents ‘costs’ assessed
against [the Insured] in a case being defended by the [Insurer’s] assigned
counsel.” Id. The court further noted that the policy was especially
applicable because it emphasized that the insurer was required to pay
“all [such] costs.” Similarly, the Policy here states that Geico will pay
“[a]ll court costs.”
Weekly D1937 (Fla. 3d DCA Sept. 10, 2014), the third district dealt with the
exact Geico policy provision at issue here. In that case, the court held that an
attorney fee judgment was a cost charged to the insured that was covered by the
Additional Payments section of the policy.2 After quoting the relevant policy language, the
third district explained:
Hence, pursuant to the unambiguous language of the policy, Geico
agrees to pay all court costs charged to an insured in a lawsuit which is
covered under Geico’s policy.
. . . .
Given this court’s precedent that (i) costs may be chargeable to a
liability insurance carrier and (ii) insurance policies are to be liberally
interpreted in favor of coverage, coupled with the fact that the instant policy
does not define court costs, we cannot find error in the trial court’s holding
that the Geico policy provides coverage for sanctions entered against the
insured as an additional cost of the litigation.
Although the attorney fee judgment in Rodriguez was granted as a
sanction, whereas the judgment here was granted pursuant to the Offer of
Judgment Statute, we find no relevance to this distinction. In fact, in
Rodriguez, Geico argued that, as a policy matter, it should not be held
liable for misrepresentations made by the insured. Somewhat similarly, it argues
in this case that it should not be held liable for a proposal for settlement
when it was not a party to that proposal. But as the court noted in
Rodriguez, “we are aware of no impediment which would have prohibited
Geico from clarifying in its liability policy that monetary sanctions resulting
from an insured’s intentional misrepresentations . . . are not considered a
‘court cost’ under the ‘additional payments’ provision of the Geico policy.”
Id. Likewise, here, Geico could have provided a definition of “court
costs” that explicitly excluded attorney’s fees sought under the Offer of
ambiguous policy must be interpreted against the insurer and in favor of
coverage, we are compelled to affirm.
If a plaintiff files a demand for judgment which is not accepted by
the defendant within 30 days and the plaintiff recovers a judgment in an amount
at least 25 percent greater than the offer, she or he shall be entitled to
recover reasonable costs and attorney’s fees incurred from the date of the
filing of the demand. If rejected, neither an offer nor demand is admissible in
subsequent litigation, except for pursuing the penalties of this
Payments section of the policy in Rodriguez was identical to the language
used in the Policy here.
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