09-4373 UNDERWOOD ANDERSON & ASSOCIATES, INC. v. LILLO'S ITALIAN RESTAURANT, INC.

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State: Florida

Court: Florida First District Court

Docket No: 09-4373

Case Date: 06/04/2010

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA UNDERWOOD ANDERSON & ASSOCIATES, INC., Appellant, v. LILLO'S ITALIAN RESTAURANT, INC., Appellee. _______________________________/ NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D09-4373

Opinion filed June 4, 2010. An appeal from the Circuit Court for Escambia County. Frank Bell, Judge. Alan R. Horky of Fuller, Johnson, Kehoe, Horky & Rettig, Pensacola, for Appellant. Lisa Minshew, Pensacola, for Appellee.

PER CURIAM. Appellant Underwood Anderson & Associates, Inc., appeals a final judgment in which the trial court awarded appellee, Lillo's Italian Restaurant, Inc., attorney's fees against Underwood Anderson pursuant to section 627.428(1), Florida Statutes (2004), having found that Underwood Anderson was an "insurer"

under the statute. We reverse and remand, because the agent was not an insurer under the facts of this case. Lillo's obtained flood coverage from Fidelity National Insurance Company through insurance agent, Underwood Anderson. After Hurricane Ivan destroyed the restaurant in September 2004, the restaurant made a claim for what it believed was the full amount under the policy of $275,600, but was informed it had only a $150,000 policy. Fidelity paid the $150,000, and the restaurant filed a claim against the agent for negligent procurement. The agent contended that the

restaurant had asked to reduce its coverage, and the restaurant contended it had not. The jury found the agent 90 percent negligent in reducing the restaurant's flood coverage and that such negligence caused the restaurant's $125,600 loss (the difference between the $275,600 the restaurant believed it had obtained and the $150,000 coverage that Fidelity paid out). The restaurant sought attorney's fees under section 768.79, Florida Statutes (2004), because a year before trial Lillo had offered to settle for $75,000 under section 627.428(1), which provides: 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 2

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. (Emphasis added) Finding without further comment that Underwood Anderson was an "insurer" under section 627.428, the court awarded Lillo's $102,945.55 in fees and costs. In the alternative, the court awarded Lillo's $48,037.86 under section 768.79. The agent does not challenge the latter award. The trial court erred as a matter of law by determining that Underwood Anderson was an "insurer" liable for the insured's attorney's fees under section 627.428. See Allstate Ins. Co. v. Regar, 942 So. 2d 969, 971 (Fla. 2d DCA 2006) (holding that whether the plaintiff was one of the entities entitled to fees under section 627.428 was a question of statutory interpretation and thus an issue of law). Accord First Union Nat'l Bank v. Turney, 839 So. 2d 774, 776 (Fla. 1st DCA 2003); Save On Cleaners of Pembroke II Inc. v. Verde Pines City Ctr. Plaza LLC, 14 So. 3d 295, 297 n.4 (Fla. 4th DCA 2009). Section 627.428 directs the court to award attorney's fees for an insured upon rendition of a judgment against "an insurer." Because the statute is in derogation of the common law, it must be strictly construed. See Liberty Nat'l Life Ins. Co. v. Bailey ex rel. Bailey, 944 So. 2d 1028 (Fla. 2d DCA 2006). The 3

parties invoke the following four definitions from the Insurance Code.

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