190 So. 3d 1155
Fla. Dist. Ct. App.2016Background
- GEICO, as insurer for Zackery Lombardo, rejected a $50,000 offer of judgment made by Alysia Macedo under Fla. Stat. § 768.79.
- A jury returned a verdict for Macedo exceeding four times the settlement proposal.
- Macedo sought to join GEICO to the judgment under § 627.4136(4) and recover taxable attorneys’ fees and costs pursuant to § 768.79 against GEICO jointly and severally with Lombardo.
- GEICO’s policy gave GEICO the sole right to litigate or settle claims and obligated GEICO to pay “all investigative and legal costs incurred by us” and “all reasonable costs incurred by an insured at our request.”
- The trial court awarded Macedo taxable fees and costs against GEICO; GEICO appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether GEICO is liable for Macedo’s statutory offer-of-judgment attorneys’ fees and costs because its policy obligated it to pay litigation-related costs | Macedo: GEICO’s policy language obligates it to pay costs incurred when it elects to litigate, so GEICO is liable for fees and costs awarded under § 768.79 | GEICO: Policy does not cover fees awarded to a plaintiff under the offer-of-judgment statute; insurer not liable for those statutory fees | Court affirmed: policy’s promise to pay investigative/legal/other reasonable costs incurred "at our request" encompassed litigation costs resulting from GEICO’s choice to litigate, making GEICO jointly and severally liable |
| Whether this decision conflicts with prior authority (Steele v. Kinsey) | Macedo: precedent supports construing insurer policy language to require insurer to bear costs when it controls litigation | GEICO: earlier authorities suggest insurer not liable for opposing party’s statutory fee awards in this context | Court certified conflict with Steele and followed New Hampshire Indem. Co. v. Gray |
Key Cases Cited
- New Hampshire Indemnity Co. v. Gray, 177 So. 3d 56 (Fla. 1st DCA 2015) (insurer’s obligation to pay costs incurred at its request includes opposing party’s litigation costs when insurer elects to litigate)
- GEICO General Insurance Co. v. Hollingsworth, 157 So. 3d 365 (Fla. 5th DCA 2015) (trial court permissibly taxed attorney’s fees against GEICO based on similar policy language)
- Florida Insurance Guaranty Ass’n v. Johnson, 654 So. 2d 239 (Fla. 4th DCA 1995) (similar construction requiring insurer to cover insured’s litigation costs)
- Steele v. Kinsey, 801 So. 2d 297 (Fla. 2d DCA 2001) (conflicting authority; court certified conflict)