Florida's Third DCA Affirms Denial of Fees Based on a PFS Which Required the Party's Attorney to Satisfy Claims of Third Parties

By Karma Hall, Esq.

 In Florida Peninsula Ins. Co. v. Brunner, No. 3D15-1677 (June 08, 2016), Florida's Third District Court of Appeals affirmed the trial court's denial of Florida Peninsula Ins. Co.'s motion for attorney’s fees based on a proposal for settlement which "purported to impose liability for an indeterminate category of 'other claims of third parties' on the [insured's] counsel, a non-party in the underlying suit. 
In reaching its decision, the 3d DCA reasoned:
"The fatal flaw in the present case has already been described: Paragraph 7(b) of the proposal purports to require Ms. Brunner’s counsel to agree not only to assure that counsel’s own legal claims to the settlement funds are extinguished, butalso to assure that counsel will satisfy and extinguish 'other claims of thirdparties.' Yet there is no signature block or other provision to indicate her
attorney’s agreement to assume such an open-ended liability. A proposal must be  drafted so that the offeree has “the ability to evaluate and independently act to resolve the case against her . . . .” Paduru v. Klinkenberg, 157 So. 3d 314, 318 (Fla. 1st DCA 2014)."
The Court additionally discussed the concerns presented by the use of the broad category of "other claims of third parties, stating:
"The concern shared by the appellee and the trial court in the present case is the breadth of 'other claims of third parties' which might reasonably exist and for which counsel might purportedly be ascribed responsibility. In a homeowner’s lawsuit against its insured for property damage such as this, such “other claims of third parties” might include a mortgagee’s claim under an additional insured endorsement, or a repair contractor’s mechanic’s lien claim, among others. The appellee’s and trial court’s concerns regarding the proposal for settlement were not unfounded."

Click for full opinion

 Do you have property damage and need assistance? Contact attorney Karma Hall today. www.karmahallpa.com (305) 200-8758. The Law Office of Karma Hall, PA provides legal services throughout Florida, main office in Miami.  

Comments

Post a Comment

Popular posts from this blog

Nominal Proposals for Settlement are Held Valid Where the Offeror Has a Reasonable Basis to Believe that Exposure to Liability is Minimal

By Karma Hall, Esq. On May 31, 2017, Florida's 1st DCA was asked to resolved alleged inconsistencies in prior holdings involving the question of whether a nominal proposal for settlement offer can be made in good faith. In Taylor Eng'g, Inc. v. Dickerson Fla., Inc. , Case No. 1D15-4782 (Fla. 1st DCA May 31, 2017), the Appellee, Dickerson, argued that the Taylor's proposal for settlement was a nominal offer that was not made in good faith, and for this reason the trial court should disallow an award of costs and attorneys' fees. To support his argument, Dickerson pointed to § 768.79(7)(a), Fla. Stat., which provides: If a party is entitled to costs and fees pursuant to the provisions of this section, the court may, in its discretion, determine that an offer was not made in good faith. In such case, the court may disallow an award of costs and attorney’s fees. The 1st DCA disagreed it made inconsistent rulings concerning the standard in determining whether a n
Read more

Insurance Settlements: When is Payment Due?

It is a common misconception in Florida that insurance settlement checks are due 20 days after an insured submits an executed release. Florida Statute 627.4265 states:  627.4265 Payment of settlement.—In any case in which a person and an insurer have agreed in writing to the settlement of a claim, the insurer shall tender payment according to the terms of the agreement no later than 20 days after such settlement is reached . The tender of payment may be conditioned upon execution by such person of a release mutually agreeable to the insurer and the claimant, but if the payment is not tendered within 20 days, or such other date as the agreement may provide, it shall bear interest at a rate of 12 percent per year from the date of the agreement ; however, if the tender of payment is conditioned upon the execution of a release, the interest shall not begin to accrue until the executed release is tendered to the insurer. This statute makes clear that, where a writt
Read more

Construction Lien Case Holding: Where both Parties Prevail on Significant Issues, Neither Party Recovers Appellate Attorney's Fees

Image
By Karma Hall, Esq.  In the decision of Bauer v. Ready Windows Sales & Services Corporation , Case No.: 3D16-1171 (Fla. 3d DCA June 21, 2017), Florida's Third District Court of Appeals was tasked with reviewing entitlement to appellate attorney's fees claimed by both parties, where both parties had filed competing motions seeking recovery of appellate attorney's fees pursuant to Rule 9.400 and section 713.29, each taking the position that they were the prevailing party after each having won on some issues but having lost on other issues. Florida's Third District Court of Appeals denied the motions for appellate attorney's fees as to both parties. The 3rd DCA held while both parties prevailed on significant issues, neither party would recover appellate attorney's fees. Here, each party lost on their appeal, while each party successfully defended that part of the judgment in their favor on the other party’s cross-appeal. As support for its finding, the
Read more