Dudley et al v. American Zurich Insurance Company

Filing 41

ORDERED: Plaintiffs' Motion for Entitlement to Attorney's Fees and Costs Under Fla. Stat. § 627.428 (Doc. 39) is DENIED. This case is DISMISSED. The Clerk is DIRECTED to deny any pending motions as moot, terminate all deadlines, and close the case. Signed by Judge Sheri Polster Chappell on 3/10/2025. (AEH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
EDNA DUDLEY and ALTON
DUDLEY,
Plaintiffs,
v.

Case No.: 2:24-cv-574-SPC-KCD

AMERICAN ZURICH
INSURANCE COMPANY,
Defendant.

/
OPINION AND ORDER

Before the Court is Plaintiffs Edna and Alton Dudley’s Motion for
Entitlement to Attorney’s Fees and Costs Under Fla. Stat. § 627.428. (Doc.
39). 1 Defendant American Zurich Insurance Company responded (Doc. 40),
making this matter ripe. For the reasons below, the motion is denied.
This is an insurance breach of contract case stemming from Hurricane
Ian. Following the storm, Plaintiffs filed a claim with Defendant under a
homeowner’s insurance policy (“the Policy”). The parties agreed there was
coverage but could not settle on the loss attributable to the storm. Plaintiffs
then sued. (See Doc. 5).

1 Unless otherwise indicated, all internal quotation marks, citations, and alterations have

been omitted in this and later citations.

The case eventually went to appraisal. (Doc. 21). The parties executed
an appraisal award, and Defendant has paid what it owed. (Doc. 40-8). While
everyone agrees that the merits have been resolved (Doc. 23), there’s a sticking
point. Plaintiffs argue that Defendant’s payment of the appraisal award is a
confession of judgment under Fla. Stat. § 627.428, which triggers attorney’s
fees. (Doc. 39).
At the time relevant here, Florida law provided for an award of
reasonable attorney’s fees to an insured who obtained a “judgment or decree”
against an insurer like Defendant. Fla. Stat. § 627.428(1). 2 An insured can
recover attorney’s fees under this statute even in the absence of a literal
judgment or decree if he obtains “the functional equivalent of a confession of
judgment or a verdict,” such as an appraisal award that exceeds what the
insurer would have otherwise paid. Ivey v. Allstate Ins. Co., 774 So. 2d 679,
684 (Fla. 2000); see also Lewis v. Universal Prop. & Cas. Ins. Co., 13 So. 3d
1079, 1081 (Fla. Dist. Ct. App. 2009). Section 627.428’s duty to pay attorney’s
fees is substantive law, so the Court applies it in this diversity action. See All
Underwriters v. Weisberg, 222 F.3d 1309, 1311–12 (11th Cir. 2000).

Section 627.428 no longer allows attorney’s fees in suits arising under residential or
commercial property insurance policies. But the Court must apply the statute as it existed
when the Policy was executed, and neither party argues otherwise. See, e.g., Baptist College
of Fla., Inc. v. Church Mut. Ins. Co., No. 5:22-cv-158-MW/MJF, 2023 WL 4358785, at *6 (N.D.
Fla. June 23, 2023).

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Plaintiffs claim that the appraisal award triggers fee-shifting under
§ 627.428. They offer no other argument. (Doc. 39 at 2-3). But attorney’s fees
“are not a statutory right of the insured whenever a plaintiff sues an insurer
and money is later paid.” Chateaubleau Villas Condo Assoc., Inc. v. Mt. Hawley
Ins., No. 08-23180-CIV, 2010 WL 4923116, at *2 (S.D. Fla. July 7, 2010).
Indeed, “not all post-suit payments by an insurer will constitute a confession
of judgment” warranting a fee award. Bryant v. GeoVera Specialty Ins. Co.,
271 So. 3d 1013, 1019 (Fla. Dist. Ct. App. 2019). “It is only when the claims
adjusting process breaks down and the parties are no longer working to resolve
the claim within the contract, but are actually taking steps that breach the
contract, that the insured may be entitled to an award of fees.” Hill v. State
Farm Fla. Ins. Co., 35 So. 3d 956, 960 (Fla. Dist. Ct. App. 2010). “Stated
another way, unless there has been a breakdown in the claims adjusting
process or the insurer is taking an inordinate amount of time to complete the
process, the insureds must let the process fully play out before filing suit.”
Rutherford v. Scottsdale Ins. Co., No. 5:19-CV-372-TKW-MJF, 2021 WL
12133906, at *2 (N.D. Fla. June 15, 2021).
Plaintiffs have not shown (or even argued) that this lawsuit was the
result of a breakdown in the claims process. (See Doc. 39). Absent such
information, the Court cannot award fees under § 627.428. End of story. See,
e.g., LM Gen. Ins. Co. v. Blackwell, No. 8:22-CV-1750-CPT, 2024 WL 1283694,
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at *4 (M.D. Fla. Mar. 26, 2024) (“[A] party seeking to recoup attorney’s fees
under Florida law bears the burden of establishing its right to such an
award.”). So Plaintiffs’ motion for attorney’s fees is denied.
One more point.

Because it is undisputed Defendant timely paid

Plaintiffs the appraisal award (Doc. 23), there is no need to confirm the award
or enter judgment. So this case is dismissed. See Hoskins v. Kinsale Ins. Co.,
No. 3:20-CV-5909-TKW-ZCB, 2023 WL 6442618, at *4 (N.D. Fla. Sept. 8, 2023)
(dismissing case where the appraisal award had been paid and the remaining
issues rendered moot).
Accordingly, it is now
ORDERED:
1.

Plaintiffs’ Motion for Entitlement to Attorney’s Fees and Costs
Under Fla. Stat. § 627.428 (Doc. 39) is DENIED.

2.

This case is DISMISSED. The Clerk is DIRECTED to deny any
pending motions as moot, terminate all deadlines, and close the
case.

DONE and ORDERED in Fort Myers, Florida on March 10, 2025.

Copies: All Parties of Record

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