Barreto v. United Services Automobile Ass'n
82 So. 3d 159
Fla. Dist. Ct. App.2012Background
- Insurer issued a homeowners policy; floods caused extensive damage; appraisal provision invoked by homeowners; insurer paid part of claim and abated appraisal; umpire awarded $214,554.66 plus additional living expenses; litigation stayed pending appraisal and later moved to lift stay; insurer paid remaining amounts after suit was filed; homeowners sought attorney's fees under 627.428(1).
- Suit filed to obtain policy benefits; appraisal process resumed after court order; appraisers failed to agree on umpire, court appointed one; appraisal award confirmed resulting in additional sums owed; insurer ultimately paid most disputed amounts after litigation began.
- Trial court denied fee request; homeowners appealed; appellate review de novo; court held fees were warranted because payments after suit amounted to a confession of judgment and the suit served a legitimate purpose.
- Court concluded the insurer’s post-suit payments functioned as a confession of judgment entitling fees; the suit motivated full payment of appraisal award and additional living expenses; Esposito distinguished but not controlling here.
- Court reversed and remanded for amount of fees to be determined.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether homeowners are entitled to 627.428 fees. | Barreto: fees warranted as insurer paid post-suit. | USAA: lacks jurisdiction or legitimate purpose. | Yes; fees awarded. |
| Whether insurer’s post-suit payments constituted a confession of judgment. | Barreto: payments after suit show confession of judgment. | USAA: not confession; policy terms control. | Yes; payments after suit amounted to confession of judgment. |
| Whether the suit served a legitimate purpose. | Barreto: suit forced insurer to pay full appraisal and expenses. | USAA: no legitimate purpose. | Yes; suit served legitimate purpose. |
| Impact of Esposito on fee entitlement. | Barreto: Esposito distinguishable; here fees proper. | USAA: Esposito controls. | Esposito distinguishes but not controlling; fees still proper. |
| Remand for fee amount determination. | Barreto: amount to be set by court. | USAA: none. | Remand for calculation of fees. |
Key Cases Cited
- Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla. 2000) (payments after suit support fee entitlement)
- Jerkins v. USF & G Specialty Ins. Co., 982 So.2d 15 (Fla. 5th DCA 2008) (fees when insurer would not pay without judicial intervention)
- Lewis v. Universal Prop. & Cas. Ins. Co., 13 So.3d 1079 (Fla. 4th DCA 2009) (fees despite filing after insurer invoked appraisal)
- Federated National Insurance Co. v. Esposito, 937 So.2d 199 (Fla. 4th DCA 2006) (insured not entitled where insurer fulfilled appraisal obligations)
- Brass & Singer, P.A. v. United Auto. Ins. Co., 944 So.2d 252 (Fla. 2006) (de novo review of fee entitlement)