FLORIDA LAW WEEKLY

“Proposal for settlement fees against insurer”

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VOLUME 40, NUMBER 6

CASES FROM THE WEEK OF FEBRUARY 6, 2015

UNDER “ADDITIONAL PAYMENTS” PROVISIONS OF THE POLICY WHICH PROVIDE THAT THE INSURED WOULD PAY ALL COURT COSTS CHARGED TO AN INSURED IN A COVERED LAWSUIT, THE INSURER WAS OBLIGATED TO PAY ATTORNEY’S FEES ASSESSED AGAINST ITS INSURED PURSUANT TO THE OFFER OF JUDGMENT STATUTE.

Geico General Insurance Co. v. Hollingsworth, 40 Fla. Law Weekly D308 (Fla. 5th DCA Jan. 30, 2015):

Geico appealed a final judgment ordering it to pay attorney’s fees for which its insured was primarily liable. Plaintiff had served a proposal for settlement which the defendant rejected.

The judgment exceeded the amount of the proposal for settlement by more than 25%, and so the plaintiff moved for attorney’s fees. The court granted the plaintiff’s request and entered an attorney’s fee judgment against the defendant in excess of his policy limits.

The plaintiff then moved to add Geico as a party defendant to the attorney fee judgment, and eventually obtained a writ of garnishment against Geico.

Geico asserted there was bright line rule prohibiting a plaintiff from ever recovering attorney’s fees assessed against a defendant from the defendant’s insurer, if the fees are awarded based on a proposal for settlement. However, the plaintiffs asserted that under the insurance contract, the language of the policy from the “Additional Payments” section did indeed cover the attorneys fees judgment.

In all of the cases that have discussed why the insurer is not responsible for attorney’s fees pursuant to proposal for settlement, none of them discussed liability the language of the insurance policy. Additionally, the language of this particular policy had Geico agreeing to pay all court costs charged to an insured in a lawsuit covered under Geico’s policy. The court did suggest that Geico could have provided a definition of “court costs” that explicitly excluded attorney’s fees sought under the offer of judgment statute if it had wanted to under the policy.

A VALID RETURN OF SERVICE DOES NOT HAVE TO LIST FACTORS DEFINING THE “MANNER OF SERVICE” FOR THE SERVICE TO BE VALID.

Koster v. Sullivan, 40 Fla. Law Weekly S63 (Fla. Feb. 5, 2015):

Section 48.21, Florida Statutes, governs the return of execution of process, and section 48.031(1)(a) governs service of process generally. A valid return of service under section 48.21 (which includes the factors of 48.031(1)(a) does not require the express statement of the factors set forth in section 48.031(1)(a) in the return of service (e.g., served a defendant’s normal place of abode, served on a person 15 years of age or older, etc.) in order for the service to be considered facially valid.

TRIAL COURT ERRED BY IGNORING THE STATUTORY FACTORS IN DENYING THE MOTION TO TRANSFER VENUE – CONVENIENCE OF WITNESSES AND INTERESTS OF JUSTICE IN THIS CASE DID REQUIRE TRANSFER.

Plaintiff filed suit in Hillsborough County after termites damaged his home in Brevard County. The termite protection company defendants were based in Hillsborough County, and in both cases the courts transferred venue to Brevard.

The insurer moved to transfer venue back to Hillsborough. It moved under section 47.122, which allows three bases for transferring venue: (1) the convenience of the parties; (2) the convenience of the witnesses; and (3) the interest of justice. Although the insurer’s motion raised these three statutory considerations, the circuit court did not address them and focused instead on the fact that the lawsuit had been set for trial. The court admonished that trial judges may not ignore these three factors when deciding whether a venue transfer is proper under section 47.122.

In looking at those factors, the court agreed that vis-a-vis the convenience of the parties, Brevard was more convenient. The court then noted that the most important consideration when determining whether to grant a section 47.122 motion is the convenience of the witnesses. Because the lawsuit involved termite damage to the plaintiff’s Brevard County home and whether that damage was covered under the homeowner’s policy, the witnesses from the various termite prevention companies were all located in Brevard. Other witnesses from a construction company and an inspection service, were also located in Brevard. The only witnesses from Hillsborough County were two of the experts.
The court said the interests of justice militated in favor of a venue transfer. Other claims had been transferred from Hillsborough to Brevard, and so the only proceeding remaining in Hillsborough was this one. Therefore, the court found the trial court abused its discretion in refusing to grant the insurer’s motion pursuant to section 47.122, and transferred venue back to Brevard County.

SERVICE THAT DOES NOT COMPLY WITH FLORIDA LAW OR HAGUE CONVENTION CANNOT BE UPHELD EVEN IF IT COMPLIED WITH CHINA’S SERVICE LAWS (AND WAS SERVED ON THE DEFENDANT IN CHINA).

SDS-IC v. Florida Concentrates International, 40 Fla. Law Weekly D313 (Fla. 2nd DCA Jan. 30, 2015).

Kind regards
Julie Littky-Rubin