Key Points:

• A dispute over attorney’s fees alone cannot be the trigger for a lawsuit or a fee award under Fla. Stat. § 627.70152.
• Fla. Stat. § 627.70152 does not create a separate and independent right to attorney’s fees.
• Fla. Stat. § 627.70152 merely creates a process for calculating the amount of attorney’s fees awardable under Fla. Stat. § 627.428.
• Where an insurance carrier fully indemnifies an insured in response to a Notice of Intent to Litigate under Fla. Stat. § 627.70152, thus resolving damages dispute, but does not pay the attorney fee portion of the demand, the insured cannot not sue based on attorney’s fees alone.

In the recent Fourth District Court case of Citizens Property Ins. Co. v. Vazquez, 368 So.3d 456 (Fla.4th DCA 2023), the plaintiffs’ counsel sent a Notice of Intent to Initiate Litigation (NOI) pursuant to Fla. Stat. § 627.70152. The NOI identified $3,982.30 as the “damages in dispute,” sought $3,500 in attorney’s fees and costs, and made a total settlement demand of $7,482.30. The defendant acknowledged the NOI and tendered payment of $6,482.30, which represented the remainder of the $10,000 policy limit. 

The plaintiffs then sued for breach of contract, alleging an initial underpayment of the claim and failure to pay the full settlement demand, including attorney’s fees, as set forth in the NOI. The plaintiffs sought attorney’s fees pursuant to § 627.70152. Although they acknowledged that the defendant fully paid their claim, the plaintiffs argued the defendant ignored the request for fees and costs. Following a hearing, the trial court awarded the plaintiffs fees and costs. The defendant appealed.

On appeal, the court discussed the two statutes at play in this case, § 627.428 (2021) and § 627.70152 (2021). The court emphasized the key distinguishing feature between the two statutes by explaining that § 627.428 provides for entitlement to attorney’s fees, while Fla. Stat. § 627.70152 determines the amount of attorney’s fees if it is ultimately determined that a plaintiff is entitled to attorney’s fees in the first place. Section 627.70152 does not create a separate and independent right to attorney’s fees. Section 627.428 was amended in 2021 to reflect that the amount of fees shall be awarded only as provided in Florida Statutes 627.70152 and 57.105.

The court discussed the Confession of Judgment doctrine as it applies to entitlement to attorney’s fees, as that doctrine was determinative as to whether the plaintiffs were entitled to fees. Attorney’s fees can be awarded not only when there is a judgment (e.g., verdict after trial), but also where an insurer declines to defend its position in the pending suit (e.g., settles the case). However, this doctrine shouldn’t apply where the plaintiffs are not forced to sue to receive benefits, or the lawsuit is not a necessary catalyst to resolving the dispute over the policy, because this would encourage unnecessary litigation.

In the Citizens Property Ins. Co. v. Vazquez case, the Fourth District Court of Appeal found the trial court erred in awarding attorney’s fees. It determined that no attorney’s fees should have been awarded because the trial court did not render a judgment against the defendant and the defendant did not confess judgment. 

It indicated that section 627.428 did not authorize an award of attorney’s fees, finding that the lawsuit was not necessary to resolve a dispute because the defendant tendered the remainder of the policy limits pre-suit (which was more than actually sought by the plaintiffs), and this payment was not a confession of judgment. Thus, there was no need for the plaintiffs to file suit because they had been fully indemnified under the policy.

It also decided that section 627.70152 did not create a separate and independent right to attorney’s fees. It stated that this section merely creates a process for calculating the amount awardable under § 627.428 in the event a plaintiff is deemed entitled to fees, which these plaintiffs were not. The court went on to note that § 627.428 was amended in 2021 to state that the amount of fees shall be awarded as provided in § 627.70152. Section 627.70152 created a formula for calculating the amount of fees awardable. Additionally, the portion of section 627.70152 dealing with fees expressly recognizes section 627.428 as the source of the fee claim. Furthermore, section 627.70152(2) excludes attorney’s fees from the definitions “amount obtained” and “disputed amount,” leading to the conclusion that a dispute over attorney’s fees alone cannot be the trigger for a lawsuit or a fee award under the statute.

The court concluded that, “Had the legislature intended for section 627.70152 to create a new substantive right to attorney’s fees, it would have said so.” 

The Fourth District Court of Appeal reversed the final judgment for attorney’s fees and remanded to the county court for an entry of an order denying the plaintiffs’ fee motion.