Do v. Geico General Insurance Co., 137 So. 3d 1039

Do owned a leased Audi A8; GEICO insured the vehicle under a physical damage policy with a loss payable endorsement to pay lienholders separately.
Geico paid the lienholder $44,262.18 after Do filed suit alleging breach of contract for nonpayment and claimed the loss was not accidental.
GEICO's payment occurred September 24, 2008, after litigation commenced but before GEICO asserted counterclaims.
Do argued under Wollard v. Lloyd’s that GEICO’s payment was the functional equivalent of a confession of judgment and mandatory attorney’s fees under s. 627.428, Fla. Stat. (2008).
GEICO later asserted five counterclaims (civil conspiracy, unjust enrichment, fraudulent misrepresentation, fraud in the inducement, and civil RICO) two months after Do moved for fees and costs.
The trial court denied Do’s renewed motion for attorney’s fees and costs; on appeal, the 5th DCA remanded for the amount of fees after determining the payment was the functional equivalent of a confession of judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Attorney’s fees tied to insurer payment after suit	Do argues GEICO’s payment to the lienholder was the confession of judgment triggering s. 627.428.	Geico contends payment was not a confession of judgment and not a basis for fees.	Yes; payment constituted the functional equivalent of a judgment entitling Do to fees.
Fees for counterclaims defense	Do seeks fees for time spent prosecuting his suit including defense against counterclaims.	Fees for counterclaims should be denied because no judgment was entered in Do’s favor.	Denied; dismissal for lack of prosecution was not a judgment or equivalent; fees for counterclaims not awarded.

Wollard v. Lloyd’s & Cos. of Lloyd's, 439 So.2d 217 (Fla. 1983) (payment after suit can be treated as settlement or judgment for fees purposes)
Avila v. Latin Am. Prop. & Cas. Ins. Co., 548 So.2d 894 (Fla. 3d DCA 1989) (check issued before dismissal can mandate fees under 627.428)
Amador v. Latin Am. Prop. & Cas. Ins. Co., 552 So.2d 1132 (Fla. 3d DCA 1989) (insurer payment can trigger fees)
Augstin v. Health Options of S. Fla., Inc., 580 So.2d 314 (Fla. 3d DCA 1991) (illustrates related fee principles)
Gibson v. Walker, 380 So.2d 531 (Fla. 5th DCA 1980) (policy against unnecessary litigation; settlement considerations)
Leon v. Old Republic Ins. Co., 561 So.2d 1304 (Fla. 3d DCA 1990) (dismissal for lack of prosecution affects proceedings)
JB Inti, Inc. v. Mega Flight, Inc., 840 So.2d 1147 (Fla. 5th DCA 2003) (dismissal not on merits not judgment for 627.428 purposes)