Insurance - Attorney's fees - Proposal for settlement - Court properly awarded insurer attorney's fees as prevailing insurer pursuant to proposal for settlement - Insured's separate count for declaratory relief was not a claim for purely equitable relief that invalidated insurer's proposal for settlement because the real issue in the case was claim for breach of contract and money damages - Insurer is entitled to attorney's fees incurred and actually paid or payable to its attorneys from service of the proposal for settlement through date of order granting entitlement to fees -

44 Fla. L. Weekly D1223b

Insurance — Attorney’s fees — Proposal for settlement — Court properly awarded insurer attorney’s fees as prevailing insurer pursuant to proposal for settlement — Insured’s separate count for declaratory relief was not a claim for purely equitable relief that invalidated insurer’s proposal for settlement because the real issue in the case was claim for breach of contract and money damages — Insurer is entitled to attorney’s fees incurred and actually paid or payable to its attorneys from service of the proposal for settlement through date of order granting entitlement to fees

CRISTINA SUAREZ, Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee. 3rd District. Case No. 3D18-1287. L.T. Case No. 15-2333. May 8, 2019. An Appeal from the Circuit Court for Miami-Dade County, Pedro P. Echarte, Jr., Judge. Counsel: Marin, Eljaiek, Lopez & Martinez, and Steven E. Gurian and David F. Garcia, for appellant. Hinshaw & Culbertson, and Maureen G. Pearcy, for appellee.

(Before SALTER and LINDSEY, JJ., and LEBAN, Senior Judge.)

On Partial Concession of Error(PER CURIAM.) Cristina Suarez (the “Insured”) appeals a final judgment awarding the defendant, Citizens Property Insurance Corporation (the “Insurer”), attorney’s fees as the prevailing party in a circuit court lawsuit. We affirm as to entitlement to fees, as the Insurer’s proposal for settlement complied with section 768.79, Florida Statutes (2018), and the Florida Supreme Court’s holdings in Kuhajda v. Borden Dairy Co. of Alabama, LLC, 202 So. 3d 391, 395-96 (Fla. 2016).

We reject the Insured’s argument that her separate count for declaratory relief (voluntarily dismissed on the first day of trial) was a claim for purely equitable relief that invalidated the Insurer’s proposal for settlement. The trial court correctly determined that the “real issue” in the case was a claim for breach of contract and money damages. See Tower Hill Signature Ins. Co. v. Javellana, 238 So. 3d 372, 376-77 (Fla. 3d DCA 2017).

Based on the Insurer’s limited and proper concession of error, we reverse and remand that portion of the final judgment fixing the amount of attorney’s fees to be awarded to the Insurer. On remand, the Insurer shall only recover those attorney’s fees incurred and actually paid or payable to its attorneys by the Insurer, from service of the 2016 proposal for settlement through the date of the order granting entitlement to fees. See § 768.79(1), Fla. Stat. (2018); Reliance Mut. Life Ins. Co. of Ill. v. Booher, 166 So. 2d 222, 224 (Fla. 2d DCA 1964) (applying dictionary definition of “incurred”).

The final judgment is affirmed as to the Insurer’s entitlement to attorney’s fees, and (pursuant to the Insurer’s limited concession of error) reversed and remanded as to the amount of such fees to be awarded to the Insurer.

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