sunEthics

In insurance cases Fifth DCA not authorized to award attorney's fees to insured who unsuccessfully petitions for certiorari, regardless of whether insured ultimately prevails

    Insured petitioned for certiorari review of non-final orders.  The Fifth DCA denied the petitions.  The appellate court then addressed the issue of awarding provisional attorney's fees for Insured in the event that Insured ultimately prevailed at trial.  The court determined that it was not authorized to enter the award.

    "This Court's opinion in [Nationwide Mutual Ins. Co. v.] Nu-Best [810 So.2d 514 (Fla. 5th DCA 2002) ] [disapproving conditionally awarding Fla.Stat. sec. 627.428 appellate attorney's fees to party that did not prevail in appellate proceeding] was approved by the Florida Supreme Court in Brass & Singer, P.A. v. United Auto. Insurance Co., 944 So.2d 252 (Fla. 2006).  Given the courts' narrow interpretation of the language of section 627.428, it appears that this Court is not authorized to grant fees to an insured who does not succeed in his or her application for certiorari.  Indeed, it is doubtful that an insured would even be entitled to fees for a certiorari proceeding in which it prevails based on the interpretation of the statute that appellate courts are authorized to award fees only for an appeal that the insured wins."  (Emphasis in original.)  Grider-Garcia v. State Farm Mutual Automobile, __ So.3d ___ (Fla. 5th DCA, No. 5D08-3793, 6/12/2009).

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