ISABEL BETANCOURT AND YEILYN GARCIA, PETITIONERS,
v.
U.S. SECURITY INSURANCE COMPANY, INC., RESPONDENT
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Petitioners Isabel Betancourt and Yeilyn Garcia sought a writ of certiorari challenging a circuit court appellate division decision that denied them attorney's fees in a personal injury protection (PIP) insurance dispute. The Florida District Court of Appeal reversed, holding that the insurer waived its objection to the fee award through its conduct and that Florida law mandates attorney's fees in any dispute resulting in judgment against the insurer in favor of the insured.
The insurer waived any objection to attorney's fees through its conduct and acquiescence, as it was on notice of the fee claim, failed to timely object, and participated in fee discovery. Florida law mandates that attorney's fees shall be awarded in any dispute resulting in judgment against the insurer in favor of the insured, and the insurer cannot escape this obligation by arguing ignorance of which statute applied.
[1] A party's failure to object to a reservation of jurisdiction for attorney's fees in a final judgment, or to challenge that reservation in a motion for rehearing, constitu…
[2] An insurer's conduct, including participation in discovery for attorney's fees and a significant delay in objecting to the basis for the fee award, can demonstrate acquie…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Florida law is clear that in 'any dispute' which leads to judgment against the insurer and in favor of the insured, attorney's fees shall be awarded to the insured.”
Establishes the mandatory nature of attorney's fees under Florida's no-fault insurance scheme in any dispute resulting in judgment for the insured.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBetancourt and Garcia filed complaints seeking PIP benefits from U.S. Security Insurance Company, including requests for attorney's fees. The final ju…
The full statement of facts, procedural history, and disposition for this case are member content.
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SHEVIN, Judge.
Isabel Betancourt, and her daughter, Yeilyn Garcia, petition for a writ of certiorari. We grant the petition, as the circuit court appellate division departed from the essential requirements of law resulting in a miscarriage of justice. Ivey v. Allstate Ins. Co., 774 So. 2d 679, 682 (Fla.2000).
Contrary to the insurer’s protestations, the Stockman v. Downs, 573 So. 2d 835 (Fla.1991), “waiver” exception applies in this case. Here, the initial complaints contained a request for attorney’s fees as a result of litigating the personal injury protection benefits [“PIP”] claim. The final judgment against the insurer in Garcia’s case contained a reservation of jurisdiction to award fees. “Having been advised by the parties that the outcome of the [Be-tancourt] case was to be governed by the Court’s decision in the companion [Garcia] case,” the court entered a final judgment against the insurer in Betancourt’s case. Hence, the Garcia judgment’s reservation of jurisdiction to award fees was incorporated by reference into the Betancourt judgment. The insurer did not appeal this reservation, did not attack the reservation in its rehearing motion, and did not otherwise object to the reservation.
Six months later, the insureds moved to determine fees, and the insurer participated in discovery to that end. In fact, the insurer waited over two years after the final judgments to object to an award of fees for failure to plead the specific statute entitling the insureds to fees.
These circumstances demonstrate that the insurer was on notice that the opponent claimed an entitlement to attorney’s fees, and by its conduct acquiesced to that claim or otherwise failed to object to the failure to plead entitlement. Here, as in Storob v. Sphere Drake Ins., 730 So. 2d 375 (Fla. 3d DCA 1999), the insurer’s conduct amounts to acquiescence under Stockman, and any objection the insurer may have had was waived.
Furthermore, as the Ivey court found, “Florida law is clear that in ‘any dispute’ which leads to judgment against the insurer and in favor of the insured, attorney’s fees shall be awarded to the insured.” Ivey, at 684. It is disingenuous for the PIP insurer to argue that it didn’t know under which statute Betancourt and Garcia were seeking a fee award. Here, the circuit court appellate division decision was patently in “conflict with firmly grounded principles embedded in Florida’s no-fault insurance scheme.” Id.
Certiorari granted, cause remanded for award of fees.
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Nichols v. State Farm Mut., 851 So. 2d 742 (Fla. 5th DCA 2003)…ompany to enforce the insurance policy to obtain the limited benefits that were promised to the insured in exchange for a paid premium. Pinnacle Medical; Blish v. Atlanta Cas. Co., 736 So. 2d 1151 (Fla.1999); Palma; Betancourt v. U.S. Sec. Ins. Co., 823 So. 2d 201 (Fla. 3d DCA 2002), review denied, No. SC02-1926, 842 So. 2d 848 (Fla. Mar.4, 2003). [*756] The Decision in U.S. Security Insurance Co. v. Cahuasqui9 The majority relies on the decision in Cahuasqui in concluding that section 768.79 applies to PIP…
Authorities Cited
- Farren Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000)
- Stockman v. Downs, 573 So. 2d 835 (Fla. 1991)
- Gene and Naomi Storob and George Douge v. Sphere Drake Ins., 730 So. 2d 375 (Fla. 3d DCA 1999)