FORTUNE INSURANCE COMPANY, APPELLANT,
v.
ANTHONY P. GOLLIE, APPELLEE
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Fortune Insurance appeals a trial court order requiring it to pay $4,995 in attorney's fees to James Powers, the discharged attorney of an insured claimant. The appellate court reversed, holding that under Florida statute, attorney's fees are awarded to the insured (not the attorney) and can be negotiated and settled like any other damages.
Fortune is statutorily liable for a reasonable attorney's fee to the insured, but the insured (not the insured's attorney) is the one entitled to the award. The amount of attorney's fees, like damages, may be negotiated and settled by the insured. The trial court erred in awarding fees directly to Powers and in increasing the fee obligation beyond the settled amount.
[1] A statute providing for attorney's fees in favor of an insured against an insurer entitles the insured, not the insured's attorney, to an award of fees.
[2] The amount of reasonable attorney's fees and costs recoverable under a statute is subject to negotiation and settlement by the insured.
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Join FLexlaw to unlock all legal intelligence“The one entitled to an award of attorney's fees under the statute is the insured not the insured's attorney.”
Establishes the core legal principle that the statute awards fees to the insured, not the attorney
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Join FLexlaw to unlock all legal intelligenceAnthony Gollie retained attorney James Powers in June 1986 to pursue an insurance claim against Fortune. In June 1988, Gollie discharged Powers and re…
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HARRIS, Judge.
Fortune Insurance Company appeals the final order of the trial court directing it to pay attorney James Powers $4,995 in attorney’s fees. We reverse.
In June of 1986, Anthony Gollie was injured in an automobile accident. Gollie retained Powers to represent him on his claim against Fortune for insurance benefits in connection with this accident. In June of 1988, Gollie discharged Powers and retained attorney David Ayers. Ayers proceeded with the case against Fortune. Powers filed notice of attorney’s lien for fees and costs “against any recovery in this action.” He claimed costs of $89.00. Ayers, on September 19, 1988, offered to settle Gollie’s claim for the “balance of his PIP payment plus $500 attorney’s fees and $89.00 costs.” This offer was accepted and the settlement amount was tendered to Gollie. When Gollie was unable to resolve his attorney’s fee obligation with Powers, he filed a motion for determination of attorney’s fees alleging the settlement and asking the court’s assistance in determining the proper attorney’s fee. Fortune responded by filing a motion to enforce the settlement agreement, claiming that the issue of Powers’ fee should not prevent enforcement of the settlement agreement be cause Fortune is not statutorily responsible for paying Powers’ fee.
The trial court concluded that Fortune is statutorily liable for paying a reasonable fee to the insured, Gollie, for the services Powers rendered.1 This ruling was correct. The court then entered an order directing Fortune to pay Powers $4,995 in attorney’s fees. This ruling was in error. The one entitled to an award of attorney’s fees under the statute is the insured not the insured’s attorney. The amount of reasonable attorney’s fees and costs, like the amount of damages for injuries, is within the power of the insured to negotiate and settle. This he admittedly did in this case. Further, Gollie did not ask to be relieved from the settlement; he merely asked the trial court to determine a reasonable fee under his obligation to his discharged attorney. This controversy was between Gollie and Powers. Instead the court ignored a principal term of the settlement and increased the attorney’s fees obligation to $5,495 and then ordered Fortune to comply with the settlement as amended.
The award of attorneys fees directly from Fortune to Powers — as was done in this case — is error and must be REVERSED.
REVERSED.
COBB, J., and HAMMOND, K.C., Associate Judge, concur. . 627.428 ATTORNEY'S FEE. — (1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.
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Brown v. Vt. Mut. Ins. Co., 614 So. 2d 574 (Fla. 1st DCA 1993)…paid by Vermont Mutual to his clients in settlement of the claims that he had filed for them. We likewise reject Vermont Mutual’s contention that it should not be liable for any part of an attorney’s fee due Evans under Fortune Ins. Co. v. Gollie, 576 So. 2d 796 (Fla. 5th DCA 1991). In that ease, Gollie was injured in an accident and em [*582] ployed an attorney, Powers, to file suit against the insurer, Fortune, for payments due under his policy of insurance. After the suit had been pending, Gollie dischar…
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Forthuber v. First Liberty Ins. Corp., 229 So. 3d 896 (Fla. 5th DCA 2017)…p. v. Ground Improvement Techniques, Inc., 645 So. 2d 420, 421 (Fla. 1994). As the plain language of section 627.428 clearly establishes, the fees owed under the statute belong to “the insured not the insured’s attorney.” Fortune Ins. Co. v. Gollie, 576 So. 2d 796, 797 (Fla. 5th DCA 1991). The statute does not specify the methodology of calculating the “reasonable sum [or] fees” to which the insured is entitled. Accordingly, courts typically determine the amount by multiplying the reasonable number of hours e…1 / 2