MAXIMILIANA ALBELO, APPELLANT,
v.
SOUTHERN OAK INSURANCE COMPANY, APPELLEE
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An elderly woman with cognitive disabilities brought a premises liability claim for damages from a burglary. The trial court dismissed her complaint, requiring her to first file a petition to determine her own incapacity. The appellate court reversed, holding that the insurer's demand that she establish her incapacity was frivolous where she had executed a valid Durable Power of Attorney authorizing her son to act on her behalf.
The court reversed the trial court's dismissal order, holding that Southern Oak's insistence that Albelo seek a guardian for herself was frivolous. The court reasoned that Florida law explicitly protects third persons who in good faith accept a properly executed power of attorney, and Southern Oak did not contest the validity of Albelo's Durable Power of Attorney or seek to rescind it based on her incompetency at execution.
[1] A third party who in good faith accepts a power of attorney that appears to be executed in the manner required by law may rely upon the power of attorney and the actions…
[2] A third party accepting a power of attorney may enforce an obligation created by the agent's actions as if the power of attorney and the agent's authority were genuine, v…
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Join FLexlaw to unlock all legal intelligence“A third person who in good faith accepts a power of attorney that appears to be executed in the manner required by law at the time of its execution may rely upon the power of attorney and the actions of the agent which are reasonably within the scope of the agent's authority and may enforce any obligation created by the actions of the agent as if: 1. The power of attorney were genuine, valid, and still in effect; 2. The agent's authority were genuine, valid, and still in effect”
Establishes the statutory protection for third parties accepting a validly executed power of attorney, which Southern Oak could have relied upon.
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Join FLexlaw to unlock all legal intelligenceMaximiliana Albelo, an octogenarian suffering from age-related cognitive disabilities, filed a premises liability claim against Southern Oak Insurance…
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This is an appeal by an octogenarian, Maximiliana Albelo, from a trial court order dismissing her premises liability complaint with prejudice, for .failure to file a petition in probate to determine her own incapacity. We summarily reverse the order on appeal and grant Albelo’s motion for an award of appellate attorney fees pursuant to section 57.105(1), Florida Statutes (2011).1 We write only to explain the reasons for our award of sanctions against Southern Oak Insurance Company and its counsel.
This is a garden-variety premises liability claim brought by Albelo for damages to her home caused -by a burglary. The burglary and the existence of a loss are conceded. ■ It is equally undisputed Albelo suffers from age-related cognitive disabilities. Although Southern Oak did not receive notice of the claim until more than a year after the burglary, the company paid $1690 on her claim. A few months later, Abelo filed a sworn proof of loss, supported by a public adjuster’s estimate in the amount of $57,760.66. Southern Oak is of the view the sworn claim is fraudulent and instigated not by Abelo, but rather by her son. Southern Oak also is concerned about the binding effect a judgment obtained by Abelo -might have against it in the future.
Albelo responds that in April 2007 — one month before the burglary, when she was seventy-eight years old — she duly executed a Durable Power of Attorney (DPA) in favor- of her son.2 Section *65709.2119, Florida Statutes (2012),'regulat-. ing powers of attorneys and similar instruments, provides explicit protection to Southern Oak in the circumstances of this case. It states:
(l)(a) A third person who in good faith accepts a power of attorney that appears to be executed in the manner required by law at the time of its execution may rely upon the power of attorney and the actions of the agent which are reasonably within the scope of the agent’s authority and may enforce any obligation created by the actions of the agent as if:
1. The power of attorney were genuine, valid,.and still in effect;
2. The agent’s authority were genuine, valid, and still in effect; and
3. The authority of the officer executing for or on behalf of a financial institution that has trust powers- and acting as agent is genuine, valid, and still in effect.
§ 709.2119.3 Southern Oak does not contest the formalities of execution and has not sought to rescind the power of attorney on the ground Albelo was incompetent at the time she executed the document. Southern Oak’s and its counsel’s persistence in arguing Albelo was required to seek a guardian for herself as a condition of continuing this action was frivolous.
Reversed and remanded with directions.
ON REHEARING GRANTED
Before SHEPHERD, C.J., and WELLS and SALTER,-JJ. ■
In an earlier opinion, we summarily reversed the order on appeal and granted Albelo’s motion for an award of appellate attorney fees pursuant to section 57.105(1), Florida Statutes (2011). Upon issuance of our- original opinion, Southern Oak retained new counsel (Rehearing Counsel), who pointed out to us that Albelo failed to satisfy the requirements of the safe harbor provision of section 57.105(1). Rehearing Counsel argues in the alternative that the argument made on behalf of Southern Oak before this court was non-frivolous.
While we agree with Rehearing Counsel that Albelo failed to satisfy the requirements of the safe harbor provision, we respectfully disagree with Rehearing Counsel that the argument made to us was non-frivolous. The twenty-one-day safe harbor provision does not apply to court-initiated sanctions. See Koch v. Koch, 47 So.3d 320, 324-25 (Fla. 2d DCA 2010). Accordingly, we now grant sanctions against Southern Oak and its initial counsel on our own motion. See § 57.105(l)(a), Fla. Stat. (2013) (“Upon the court’s initiative ... the court shall award a reasonable attorney’s fee .;. to be paid to the prevailing party when .;. the losing party ... knew or should have known that a claim or defense when initially presented to the *66court ... [w]as not supported by the material facts necessary to establish the claim or defense[.]”). Southern Oak and its initial counsel have had ample opportunity to explain why appellate attorney fees and costs should not be imposed as a sanction against both Southern Oak and its initial counsel.
We remand for a determination of the amount of attorney fees and costs which should be awarded against Southern Oak and its initial counsel.
In an earlier opinion, we summarily reversed the order on appeal and granted Albelo’s motion for an award of appellate attorney fees pursuant to section 57.105(1), Florida Statutes (2011). Upon issuance of our-original opinion, Southern Oak retained new counsel (Rehearing Counsel), who pointed out to us that Albelo failed to satisfy the requirements of the safe harbor provision of section 57.105(1). Rehearing Counsel argues in the alternative that the argument made on behalf of Southern Oak before this court was non-frivolous.
While we agree with Rehearing Counsel that Albelo failed to satisfy the requirements of the safe harbor provision, we respectfully disagree with Rehearing Counsel that the argument made to us was non-frivolous. The twenty-one-day safe harbor provision does not apply to court-initiated sanctions. See Koch v. Koch, 47 So. 3d 320, 324-25 (Fla. 2d DCA 2010).
Accordingly, we now grant sanctions against Southern Oak and its initial counsel on our own motion. See § 57.105(l)(a), Fla. Stat. (2013) (“Upon the court’s initiative ... the court shall award a reasonable attorney’s fee .;. to be paid to the prevailing party when .;. the losing party ... knew or should have known that a claim or defense when initially presented to the court ... [w]as not supported by the material facts necessary to establish the claim or defense[.]”). Southern Oak and its initial counsel have had ample opportunity to explain why appellate attorney fees and costs should not be imposed as a sanction against both Southern Oak and its initial counsel.
We remand for a determination of the amount of attorney fees and costs which should be awarded against Southern Oak and its initial counsel.