Insurance
— Automobile liability — Attorney’s fees and costs — Trial court properly
awarded attorney’s fees and costs against insurer jointly and severally with
insured pursuant to plaintiff’s proposal for settlement — Policy provision
stating that insurer would cover “other expenses incurred at our request”
included costs associated with choosing to litigate a case instead of settling
it — Conflict certified

GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. ALYSIA
M. MACEDO AND ZACKERY R. LOMBARDO, Appellees. 1st District. Case No. 1D15-2896.
Opinion filed May 6, 2016. An appeal from the Circuit Court for Okaloosa
County. William F. Stone, Judge. Counsel: B. Richard Young and Courtney F.
Smith of Young, Bill, Roumbos & Boles, P.A., Pensacola, for Appellant.
Elizabeth Monro of Florida Vanguard Attorneys LLC, Tampa, for Appellee Zackery
R. Lombardo; David A. Simpson, Jonathan D. Simpson of The Simpson Law Firm,
Fort Walton Beach, for Appellee Alysia M. Macedo.

(PER CURIAM.) The Government Employees Insurance Company
(GEICO) challenges the final judgment in an automobile insurance case holding
it liable to pay Alysia M. Macedo’s attorneys fees and costs after GEICO had
rejected, on behalf of its insured Zackery R. Lombardo, a $50,000 settlement
proposal made by Ms. Macedo pursuant to section 768.79, Florida Statutes. A
jury returned a verdict in Ms. Macedo’s favor, awarding more than four times
the amount of the proposal. Ms. Macedo then joined GEICO to the judgment, see
§ 627.4136(4), Fla. Stat., and sought taxable fees and costs pursuant to
section 768.79, which the trial court awarded against GEICO jointly and
severally with its insured.

We now affirm the trial court’s judgment based on our prior
decision in New Hampshire Indemnity Company v. Gray, 177 So. 3d 56 (Fla.
1st DCA 2015). In Gray, this Court found that the insurer’s policy
provision stating that it would cover “other reasonable expenses incurred at
our request” included costs associated with choosing to litigate a case instead
of settling it. Id. at 63-64. See also GEICO Gen. Ins. Co. v.
Hollingsworth, 157 So. 3d 365 (Fla. 5th DCA 2015) (finding that the trial
court permissibly taxed attorneys’ fees against GEICO based on its policy
provision requiring it to pay legal costs); Fla. Ins. Guar. Ass’n v.
Johnson, 654 So. 2d 239 (Fla. 4th DCA 1995) (construing similar policy
language to require the insurer to cover its insured’s litigation costs). As in
Gray, GEICO’s policy with Mr. Lombardo gave it the sole right to
litigate and settle claims, and contractually obligated it to pay for “all
investigative and legal costs incurred by us” and “all reasonable costs
incurred by an insured at our request.” The policy didn’t provide a definition
of legal or other costs, nor exclude, for example, costs and fees awarded to a
plaintiff driver pursuant to the offer of judgment statute. We recognized in Gray
that:

[U]nder
insurance policies such as the one here, insurers enjoy the sole right to
settle or litigate claims against their insureds; therefore, choosing to
litigate is no different than a request . . . to do so. Any such expression, or
request, necessarily encompasses incurring litigation costs, which may mean not
only the insurer’s litigation costs, but also those incurred by the opposing
party should that party prevail. It is the insurer’s choice to litigate — a
decision only it can make — that results in these costs being incurred; thus,
“those expenses [are] incurred at the insurer’s request.”

Gray, 177 So. 3d at 63 (quoting Johnson,
654 So. 2d at 240).

On this basis, we affirm the trial court’s final judgment
adjudicating GEICO jointly and severally liable with its insured for Ms.
Macedo’s taxable fees and costs. As in Gray, we also certify conflict
with Steele v. Kinsey, 801 So. 2d 297 (Fla. 2d DCA
2001).

AFFIRMED; CONFLICT CERTIFIED. (WETHERELL, ROWE, and
OSTERHAUS, JJ., concur.)

* *
*