New Hampshire Indemnity Company v. John Gray Damil Belizaire etc., 177 So. 3d 56

Background

John Gray obtained a $2.3 million jury verdict against insured Damil Belizaire after a catastrophic auto collision; New Hampshire Indemnity Company (NHIC) defended Belizaire under an auto liability policy.
The trial court reserved jurisdiction to award taxable costs; Gray moved to tax costs and later sought a final judgment for taxed costs and to join NHIC as jointly and severally liable.
Gray initially served his joinder motion on Belizaire’s attorneys, not NHIC; NHIC (through independent counsel) opposed joinder claiming noncompliance with §627.4136(4) (certified-mail service to insurer) and that the policy did not cover plaintiff’s taxed costs.
Gray filed a supplemental certificate asserting he later served the motion by certified mail on the insurer (and emailed opposing counsel) before the joinder hearing; NHIC’s counsel contended they had not received the certified-mail packet in time.
The trial court denied NHIC’s objections and entered a final judgment joining NHIC jointly and severally liable for taxable litigation costs (over $135,000).
On appeal NHIC argued (1) improper joinder due to defective service under §627.4136(4); (2) the judgment lacked required findings on coverage; and (3) substantively the policy’s supplementary payments clause did not obligate NHIC to pay plaintiff’s taxed costs.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §627.4136(4) certified-mail service requirement to join insurer was followed	Gray: supplemental certified-mail served before final judgment satisfied statute and insurer received actual notice and opposed joinder	NHIC: the certified-mail was untimely/never received and statutory service was required to be effective	Court: substantial compliance plus absence of prejudice (insurer had counsel, filed opposition, attended hearing) — joinder not improper
Whether the judgment was defective for lacking articulated findings on coverage	Gray: court relied on briefing and authority for joinder; no rehearing was filed to preserve challenge	NHIC: judgment lacks findings showing policy covers taxed costs	Court: issue unpreserved (no motion for rehearing); even if preserved, record shows court adopted plaintiff’s authority so findings were not required
Whether the policy’s “other reasonable expenses incurred at our request” in Supplementary Payments covers plaintiff’s taxed litigation costs	Gray: insurer’s election to defend is a de facto “request” to litigate; therefore costs incurred because insurer litigated are covered	NHIC: “request” means insurer must have expressly authorized or solicited those specific expenses; Kinsey supports insurer’s narrower reading	Court: adopts Johnson/Jones approach — insurer’s decision to litigate makes costs “incurred at our request,” so supplementary payments can cover plaintiff’s taxed costs; affirms joinder
Whether precedent requires a different result (conflict with Kinsey/Steele)	Gray: follows Fourth District Johnson and Florida Supreme Court Jones reasoning	NHIC: relies on Second District Steele v. Kinsey construing “request” narrowly	Court: certifies conflict with Steele v. Kinsey and follows Johnson and Jones

Key Cases Cited

Florida Ins. Guar. Ass’n, Inc. v. Johnson, 654 So.2d 239 (Fla. 4th DCA 1995) (holds insurer's decision to defend means litigation expenses were incurred at insurer's request and can be paid under supplementary payments)
Steele v. Kinsey, 801 So.2d 297 (Fla. 2d DCA 2001) (construes “expenses incurred at our request” narrowly; conflicts with Johnson)
Jones v. Florida Ins. Guar. Ass’n, Inc., 908 So.2d 435 (Fla. 2005) (Florida Supreme Court recognizes FIGA can be bound by supplementary payments obligations such as interest on judgment)
ACE Am. Ins. Co. v. HCP IIII of Bradenton, Inc., 913 So.2d 1280 (Fla. 2d DCA 2005) (insurer not subject to in personam jurisdiction where plaintiff made no attempt to join carrier under §627.4136)
GEICO Gen. Ins. Co. v. Williams, 111 So.3d 240 (Fla. 4th DCA 2013) (explains insurer may be joined at or before entry of final judgment on costs; a judgment on the merits is not final for collateral costs issues until those issues are resolved)
Ulrich v. Eaton Vance Distribs., Inc., 764 So.2d 731 (Fla. 2d DCA 2000) (timing principles for when a carrier is joined relative to final judgment)