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.”
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Kansas R. Gooden
Board Certified Appellate Attorney
Appellate Practice Group Leader