Allen v. State Farm Florida Insurance Co.
209 So. 3d 11
| Fla. Dist. Ct. App. | 2016Background
- Petitioners Wayne and Susan Allen obtained certiorari relief from this court reversing a trial-court decision and sought appellate attorney's fees under section 627.428(1), Florida Statutes (2010).
- The Allens asked the appellate court to provisionally grant fees conditioned on their ultimately prevailing on remand in the trial court.
- State Farm argued the appellate court could not award fees for a certiorari proceeding and relied on Grider-Garcia and the principle that §627.428(1) must be strictly construed.
- The panel recognized contrary precedent from the Florida Supreme Court interpreting the predecessor statute to permit fee awards for appellate work in both direct appeals and certiorari proceedings.
- The court vacated its prior denial, held that appellate fees may be awarded in certiorari proceedings, and granted the Allens’ amended motion for fees conditioned on their prevailing on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an appellate court may award attorney's fees under §627.428(1) for certiorari proceedings | Allens: §627.428(1) authorizes fees for appellate proceedings, including certiorari | State Farm: §627.428(1) allows fees only for appeals; certiorari does not qualify (relying on Grider-Garcia) | Court: Florida Supreme Court precedent permits fees for appellate work in both direct appeals and certiorari proceedings; fees may be awarded on certiorari |
| Whether appellate fees can be provisionally granted conditioned on prevailing on remand | Allens: request provisional grant now, to be set by trial court if they ultimately prevail | State Farm: opposes provisional grant; statute should be strictly construed and limited | Court: Vacated prior denial and conditionally granted appellate fees to be set by trial court if Allens prevail on remand |
Key Cases Cited
- Home Ins. Co. v. Drescher, 220 So. 2d 902 (Fla. 1969) (Florida Supreme Court holds attorneys' fees may be awarded for appellate services in both direct appeals and certiorari under the amended statute)
- Advanced Chiropractic & Rehab. Ctr., Corp. v. United Auto. Ins. Co., 140 So. 3d 529 (Fla. 2014) (approves fee awards under §627.428(1) in certiorari proceedings and discusses timeliness of fee motions)
- Grider-Garcia v. State Farm Mut. Auto. Ins. Co., 14 So. 3d 1120 (Fla. 5th DCA 2009) (held appellate courts unauthorized to award fees when insured did not prevail on certiorari; contains dicta limiting fees to appeals)
- Brass & Singer, P.A. v. United Auto. Ins. Co., 944 So. 2d 252 (Fla. 2006) (recognizes strict construction of §627.428(1) and that appellate fees require prevailing on appeal)