Appellate Update – A Successful Petitioner for Writ of Certiorari is Entitled to Appellate Attorney’s Fees Pursuant to Florida Statute § 627.428

September 13, 2016 by on News

Florida Statute § 627.428(1) provides:

Upon rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

In the recent past, there has been some debate about whether this provision would allow for appellate fees arising from a Petition for Writ of Certiorari or other extraordinary writ.  Technically, a Petition for Writ of Certiorari is not an appeal and is an original proceeding in the appellate court.

The Second District addressed this issue in Allen v. State Farm Fla. Ins. Co., 2016 Fla. App. LEXIS 12381 (Fla. 2d DCA August 17, 2016).  Allen sought appellate fees under this provision after successfully obtaining a Writ of Certiorari from the Court.  State Farm had argued that the Allens were not entitled to fees because the proceeding was a Petition for Writ of Certiorari, and not an appeal.  State Farm contended that the Court must strictly construe to the provision which requires the insured to prevail on “appeal.”

The Court granted the Allens request and explained that allowing appellate fees for Petitions for Writ of Certiorari comports with the purpose of the statute, which is to “discourage insurers from contesting valid claims and to reimburse successful insureds for their attorney’s fees when they are compelled to defend or sure to enforce their policy rights.”

If you have any questions about this case or would like to refer an appellate matter, please contact our appellate attorneys.

Kansas R. Gooden
Board Certified Appellate Attorney
Appellate Practice Group Leader
Direct: 904.493.3755
Fax: 904.493.5658


Associate - Kathleen A. Carlson
Kathleen A. Carlson
Direct: 904.493.3754
Fax: 904.493.5651

Comprehensive Services

Many cases overlap several areas of law. As a full service law firm, we are able to recognize how one legal discipline impacts another. We work as a team on complex issues that require knowledge of a variety of state and federal laws. This multi-disciplinary approach allows clients to receive the large-firm advantage of access to multiple attorneys in a wide scope of practice areas as well as the hands-on customer service offered by a boutique law firm. In addition to civil litigation, employment law, workers’ compensation defense, commercial law, construction law and appeals, our firm also handles professional liability claims.

Our bilingual staff is available to assist with immigration matters, including consular and removal defenses.