LM General Insurance Company et al v. Jessica M. Blackwell

Filing 36

ORDER denying Defendant's 31 Amended Motion for Entitlement to Attorney's Fees. Signed by Magistrate Judge Christopher P. Tuite on 3/26/2024. (ACL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

LM GENERAL INSURANCE
COMPANY, and LIBERTY
MUTUAL INSURANCE COMPANY,
Plaintiffs,
v.

Case No. 8:22-cv-1750-CPT

JESSICA BLACKWELL,
Defendant.
__________________________________/

ORDER
Before the Court is Defendant Jessica M. Blackwell’s Amended Motion for
Entitlement to Attorney’s Fees.

(Doc. 31).

Upon careful review of the parties’

submissions and for the reasons set forth below, Blackwell’s motion is denied.
I.
This diversity action stems from an insurance policy issued by Plaintiff LM
General Insurance Company (LM General) to Blackwell for the period of April 1,
2014, through April 1, 2015. (Doc. 31-1). As pertinent here, the policy provided
Blackwell with uninsured/underinsured motorist (UM) coverage in the amount of
$100,000 per person. Id.

In May 2014, Blackwell was in an automobile accident with an underinsured
motorist. (Doc. 1 at 2–3). Blackwell settled with the driver and lodged a claim for her
UM benefits with LM General. Id. at 3. LM General, however, refused to tender the
entire $100,000 policy limit. (Doc. 31 at 2).
In March 2015, Blackwell pursued the matter further by filing a Civil Remedy
Notice of Insurer Violation (CRN) pursuant to Florida Statute § 624.155. (Doc. 1-2).
In short, this statutory scheme requires an insured to file a CRN specifying an alleged
bad faith violation by an insurer as a condition precedent to later bringing a bad faith
claim against that entity. Fla. Stat. § 624.155(3)(a). The insurer then has sixty days
to cure the purported violation referenced in the CRN. Fla. Stat. § 624.155(3)(c).
Blackwell’s CRN, however, identified her insurer as Plaintiff Liberty Mutual
Insurance Company (Liberty Mutual) instead of LM General. 1 (Doc. 1-2). Citing this
discrepancy, LM General responded to the CRN by stating that it was defective. Id.
LM General also explained that it valued Blackwell’s claim at $1,000 and sent a check
to Blackwell’s attorney for that amount. Id. Blackwell apparently did not accept the
$1,000, nor did she file another CRN against LM General. (Doc. 32 at 3).
In January 2016, LM General separately tendered $4,500 of the $100,000 UM
limit to Blackwell, which Blackwell accepted. (Doc. 1 at 3). Despite doing so,
Blackwell filed suit in state court against LM General the next month. (Doc. 31-2).

Blackwell acknowledges that Liberty Mutual, which she describes as LM General’s parent company,
was listed on the CRN but maintains that this defect was technical in nature and did not prejudice LM
General. (Doc. 31 at 3 & n.2). The Court need not address this dispute to resolve the pending motion.
1

2

In November 2017, LM General tendered the remaining $95,500 in UM
coverage to Blackwell. (Doc. 1-3). Blackwell returned this check, seemingly in an
attempt to secure more than the policy limit. Id.; (Doc. 12 at 5). LM General again
proposed to pay the $95,500 UM coverage to Blackwell in January 2018, February
2018, and November 2019, but Blackwell rejected each of these offers. (Doc. 32 at 4).
According to LM General, Blackwell was demanding more than $1,000,000 at the
time. (Doc. 1 at 5).
In August 2022, while Blackwell’s state court litigation was still pending, LM
General and Liberty Mutual initiated the instant federal action pursuant to the
Declaratory Judgment Act, 28 U.S.C. § 2201, seeking a ruling related to their
respective liabilities to Blackwell. (Doc. 1). For its part, Liberty Mutual sought a
declaration that it did not insure Blackwell and was therefore not responsible to her
for either UM coverage or any extra-contractual damages. Id. LM General, on the
other hand, asked the Court to declare that Blackwell did not file a proper CRN against
it in accordance with the statutory requirements for bringing a bad faith lawsuit. Id.
Blackwell responded to LM General and Liberty Mutual’s commencement of
this action by moving to dismiss their complaint. (Doc. 12). Blackwell contended that
the Plaintiffs’ declaratory judgment request was not ripe because the underlying state
court case was still pending. Id. Blackwell also argued that LM General had not
sufficiently established the threshold amount in controversy for purposes of the
diversity statute (i.e., 28 U.S.C. § 1332), and that the Court thus lacked subject matter
jurisdiction over the parties’ dispute. Id.
3

In September 2022, the Court granted Blackwell’s motion and dismissed LM
General and Liberty Mutual’s complaint without prejudice. (Doc. 14). In doing so,
the Court pointed to the “ongoing state court proceeding involving the claims at issue
and [the fact that] any remaining claims [were] not ripe for review absent a judgment
from the state court.” Id. The Court also abstained from hearing the matter based on
the Eleventh Circuit’s per curiam decision in Ameritas Variable Life Insurance Co. v.
Roach, 411 F.3d 1328 (11th Cir. 2005). Id.
Blackwell subsequently moved for an order declaring her entitlement to
attorney’s fees incurred in this action under Florida Statute § 627.428. 2 (Doc. 15).
Section 627.428 provides, in relevant part, that fees shall be awarded “[u]pon the
rendition of a judgment or decree” in favor of an insured and against an insurer “under
a policy or contract executed by the insurer.” Fla. Stat. § 627.428 (2022). LM General
opposed the motion. (Doc. 16).
Not long after, the Plaintiffs filed a notice of appeal with the Eleventh Circuit
challenging the Court’s September 2022 Order granting Blackwell’s motion to dismiss.
(Doc. 17). LM General and Blackwell then settled the state court case, and Blackwell
accepted the $95,500 in remaining UM benefits.

(Doc. 32-1).

In light of this

disposition, the Plaintiffs voluntarily dismissed their appeal. (Doc. 19); (Doc. 32 at 6).

Although the Florida Legislature repealed section 627.428 in March 2023, the repeal delineates that
it only applies to cases filed after the March 2023 effective date. See Ch. 2023-15, § 30, Laws of Fla.
(“Except as otherwise expressly provided in this act, this act shall apply to causes of action filed after
the effective date of this act.”).

2

4

The Court subsequently heard oral argument on Blackwell’s fee motion in April
2023.

(Doc. 24).

The next month, however, the Eleventh Circuit issued an

unpublished opinion in Southern-Owners Ins. Co. v. Maronda Homes, Inc. of Florida, 2023
WL 3270065 (11th Cir. May 5, 2023) (Maronda Homes), 3 in which the appellate court
applied section 627.428 in circumstances similar to those present here. In that case,
the court affirmed a district court’s dismissal of two fee motions brought pursuant to
section 627.428 in a declaratory judgment action which had previously been dismissed
for lack of subject matter jurisdiction. Maronda Homes, 2023 WL 3270065, at *1.
Given this newly issued and potentially persuasive authority, the Court denied
Blackwell’s fee motion without prejudice and instructed the parties to confer in good
faith to see if they could settle their quarrel, especially since the estimated amount of
fees at issue totaled only $6,000 at the time Blackwell filed her motion. (Docs. 15, 30).
The parties were unable to reach an agreement, however, leading Blackwell to
renew her fee motion against LM General in the estimated amount of $19,000. (Doc.
31). The matter is therefore ripe for the Court’s consideration.
II.
The resolution of Blackwell’s fee motion implicates three issues, each of which
is dispositive of the motion.

The first is whether the Court has subject matter

jurisdiction over Blackwell’s fee request under section 627.428 in light of the Court’s
dismissal of LM General and Liberty Mutual’s complaint on jurisdictional grounds;

Unpublished decisions are not binding precedent but may be cited as persuasive authority. 11th Cir.
R. 36-2.
3

5

the second is whether section 627.428 can be invoked in this action; and the third is
whether Blackwell can satisfy the requirements of section 627.428 if that statute applies
here. As set forth below, the Court finds in favor of LM General on the first question
and accordingly need not answer the other two.
It is well established that “federal courts are courts of limited jurisdiction.”
Home Depot U.S.A., Inc. v. Jackson, 587 U.S. ___, 139 S. Ct. 1743, 1746 (2019) (citation
omitted); see also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174–78, 2 L.Ed. 60 (1803)
(discussing the jurisdictional limitations under Article III of the United States
Constitution). It has also long been recognized that the Declaratory Judgment Act, 28
U.S.C. § 2201—under which this lawsuit was brought—“does not broaden [the]
jurisdiction” of federal courts. Gulf States Paper Corp. v. Ingram, 811 F.2d 1464, 1467
(11th Cir. 1987) (citation omitted), abrogated on other grounds by King v. St. Vincent’s
Hosp., 502 U.S. 215 (1991)). To the contrary, Congress restricted federal jurisdiction
under the Declaratory Judgment Act “to actual controversies, in statutory recognition
of the fact that federal judicial power under Article III . . . extends only to concrete
‘cases or controversies.’” Atlanta Gas Light Co. v. Aetna Cas. & Sur. Co., 68 F.3d 409,
414 (11th Cir. 1995) (citing Tilley Lamp Co. v. Thacker, 454 F.2d 805, 807–08 (5th Cir.
1972)). 4
In this way, Article III confines the “jurisdiction of the federal courts to cases
and controversies of sufficient concreteness to evidence a ripeness for review.” Digit.
The Eleventh Circuit, in its en banc decision in Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.
1981), adopted as precedent the opinions of the former Fifth Circuit rendered prior to October 1, 1981.
4

6

Props., Inc. v. City of Plantation, 121 F. 3d 586, 589 (11th Cir. 1997) (citations omitted).
Accordingly, if a declaratory judgment action is not ripe, it must be dismissed for want
of subject matter jurisdiction. Id. at 591 (“The determination of ripeness goes to
whether the district court had subject matter jurisdiction to hear the case.”) (internal
quotation marks and citation omitted).
Once a district court determines that it lacks subject matter jurisdiction, it
cannot adjudicate the merits of the claim. Stanley v. Cent. Intel. Agency, 639 F.2d 1146,
1157 (5th Cir. Mar. 1981). In some instances, however, a court may thereafter decide
issues that are collateral to the merits. Hyde v. Irish, 962 F.3d 1306, 1309 (11th Cir.
2020). One such issue is an award of attorney’s fees. See, e.g., Willy v. Coastal Corp.,
503 U.S. 131, 137–39 (1992) (determining that a district court could award sanctions
under Federal Rule of Civil Procedure 11 in a case where it was later deemed to be
without subject matter jurisdiction because such an order was collateral to the merits);
Moore v. Permanente Med. Group, Inc., 981 F.2d 443, 445 (9th Cir. 1992) (holding that
an “award of fees pursuant to [28 U.S.C. §] 1447(c) 5 is collateral to the decision to
remand,” such that the “district court retained jurisdiction after the remand to
entertain” a fee motion); see also Hyde, 962 F.3d at 1309 (describing “the imposition of
costs, attorney’s fees, and contempt sanctions” as collateral matters) (quoting Cooter &
Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990)).

Section 1447(c) states that “[a]n order remanding [a] case may require payment of just costs and any
actual expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c).
5

7

To resolve a fee dispute, federal courts sitting in diversity—as the Court is doing
here—must apply the substantive law of the forum state and the procedural
requirements set forth in federal law, as prescribed by the Erie doctrine. Gasperini v.
Ctr. for Humans., Inc., 518 U.S. 415, 427 (1996) (“Under the Erie doctrine, federal courts
sitting in diversity apply state substantive law and federal procedural law.”) (citing Erie
R.R. Co. v. Tompkins, 304 U.S. 64 (1938)); Royalty Network, Inc. v. Harris, 756 F.3d 1351,
1357 (11th Cir. 2014) (same) (citing Hanna v. Plumer, 380 U.S. 460, 465 (1965)).
Statutes authorizing the recovery of fees are considered substantive under Erie.
McMahan v. Toto, 256 F.3d 1120, 1132 (11th Cir. 2001), modified on other grounds, 311
F.3d 1077 (11th Cir. 2002). This includes the Florida fee-shifting statute at issue in
this action—section 627.428. See All Underwriters v. Weisberg, 222 F.3d 1309, 1312
(11th Cir. 2000) (“[W]e hold that [section] 627.428 is substantive law for Erie
purposes.”).
Florida courts follow the common law rule that “each party is responsible for
its own attorney[’s] fees unless a contract or statute provides otherwise.” Price v. Tyler,
890 So. 2d 246, 251 (Fla. 2004); see also Int’l Fid. Ins. Co. v. Americaribe-Moriarty JV, 906
F.3d 1329, 1335 (11th Cir. 2018) (noting that Florida law dictates that, “absent a
specific statutory or contractual provision, a prevailing litigant has no general
entitlement to attorney’s fees”) (citations omitted). As a result, fee shifting statutes like
section 627.428 are “strictly construed.” Daneshpajouh v. Sage Dental Grp. of Fla., PLLC,
2023 WL 5132835, at *9 (S.D. Fla. June 20, 2023) (quoting Air Turbine Tech., Inc. v.

8

Quarles & Brady, LLC, 165 So. 3d 816, 821 (Fla. Dist. Ct. App. 2015)), report and
recommendation adopted, 2023 WL 4676002 (S.D. Fla. July 21, 2023); see also Diaz v.
Kasinsky, 306 So. 3d 1065, 1067 (Fla. Dist. Ct. App. 2020) (“Because fee shifting
contracts, statutes[,] or rules are in derogation of the common law, they must be strictly
construed.”) (collecting cases). In the end, a party seeking to recoup attorney’s fees
under Florida law bears the burden of establishing its right to such an award. Army
Aviation Heritage Found. & Museum, Inc. v. Buis, 504 F. Supp. 2d 1254, 1269 (N.D. Fla.
2007) (citing Salisbury v. Spielvogel, 451 So. 2d 974, 975 (Fla. Dist. Ct. App. 1984)).
Turning to section 627.428, that statute provides, in pertinent part:
(1) Upon the 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 . . .
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. . . .
* * *
(3) When so awarded, compensation or fees of the attorney shall be
included in the judgment or decree rendered in the case.
Fla. Stat. § 627.428 (2022) (emphasis added). 6 As explained by the Florida Supreme
Court, the purpose of section 627.428 is “to discourage insurance companies from
contesting valid claims, and to reimburse insureds for their attorney’s fees incurred
when they must enforce in court their contract with the insurance company.” Pepper’s

Throughout this Order, the Court cites to the version of section 627.428 that was in effect during the
time frame when the case was dismissed.

6

9

Steel & Alloys, Inc. v. United States, 850 So. 2d 462, 465 (Fla. 2003) (quoting Bell v. U.S.B.
Acquisition Co., 734 So. 2d 403, 411 n.10 (Fla. 1999)).
In its published decision in Certain British Underwriters at Lloyds of London,
England v. Jet Charter Service, Inc., 739 F.2d 534 (11th Cir. 1984) (Jet Charter), the
Eleventh Circuit examined whether a fee award under section 627.428 was collateral
to the action or part of the merits of the case. The plaintiff insurer in that case sought
a declaration that an incident was not covered by an insurance contract. Id. at 534.
The district court granted summary judgment for the insured and reserved jurisdiction
to consider the section 627.428 fee request. Id. When the insurer appealed, the insured
moved to dismiss the appeal, asserting that the grant of summary judgment without a
fee award was not a final, appealable order. Id. at 535.
In addressing this issue, the Eleventh Circuit looked to whether a fee award
under the statute was “similar to costs . . . or collateral to an action” as opposed to “an
integral part of the merits of the case.” Id. at 535 (quoting Holmes v. J. Ray McDermott
& Co., 682 F.2d 1143, 1146 (5th Cir. 1982)). And to determine which of the three
categories identified in Holmes applied to a section 627.428 award, i.e., costs, collateral,
or “an integral part of the merits,” the court turned to Florida law. Jet Charter, 739
F.2d at 535–36.
The court found the decision in Prudential Insurance Co. v. Lamm, 218 So. 2d 219
(Fla. Dist. Ct. App. 1969) to be “most directly on point” because it considered a similar
question in the context of whether a fee award should be included in calculating the

10

amount of a judgment for purposes of evaluating the jurisdictional limitation. Jet
Charter, 739 F.2d at 536 (citing Lamm, 218 So. 2d at 219). In Lamm, the court
explained that fees recoverable by statute are to be regarded as “costs” only when the
statute “specifically [so] provide[s].”

Lamm, 218 So. 2d at 219.

It added that

“[o]therwise, they are to be treated as an element of damages.” Id. The Lamm court
derived this proposition from the Florida Supreme Court’s opinion in State ex rel. Royal
Ins. Co. v. Barrs, 99 So. 668 (Fla. 1924). Lamm, 218 So. 2d at 219.
The Eleventh Circuit in Jet Charter applied this guidance and determined that an
award of fees under section 627.428 was an “integral part of the merits.” Jet Charter,
739 F.2d at 536. As a result, the Eleventh Circuit deemed the summary judgment
order nonfinal because the trial court reserved jurisdiction to resolve the fee award and
then dismissed the appeal. Id. at 534, 536.
Nearly twenty-five years later, in its unpublished decision in Prime Insurance
Syndicate, Inc. v. Soil Tech Distributors, Inc., 270 F. App’x 962 (11th Cir. 2008) (per
curiam) (Prime Insurance), the Eleventh Circuit again confronted the propriety of a
section 627.428 fee award. In Prime Insurance, the district court dismissed an insurer’s
declaratory judgment complaint for lack of subject matter jurisdiction after finding that
it did not satisfy the amount in controversy requirement for diversity actions. Prime
Insurance, 270 F. App’x at 963. The insured subsequently filed a section 627.428 fee
request predicated on its contention that it was the prevailing party. Id. The district
court agreed and granted the request. Id. The insurer appealed, arguing—of import

11

here—that the district court lacked jurisdiction to award fees following the dismissal
of the complaint on jurisdictional grounds and that the insured did not prevail on the
merits in any event. Id.
The Eleventh Circuit rejected both arguments. Id. at 964–65. First, the court
concluded based on Florida law that section 627.428 did not require an insured to
succeed on the merits of a case to recoup fees under that statute. Id. at 964 (citing
Dawson v. Aetna Cas. & Sur. Co., 233 So. 2d 860, 861 (Fla. Dist. Ct. App. 1970); Home
Ins. Co. v. Drescher, 220 So. 2d 902, 903–04 (Fla. 1969); Arango v. United Auto Ins. Co.,
901 So. 2d 320, 321 (Fla. Dist. Ct. App. 2005); Leaf v. State Farm Mut. Auto. Ins. Co.,
544 So. 2d 1049, 1050–51 (Fla. Dist. Ct. App. 1989)). The court also determined that
the district court had jurisdiction to award fees pursuant to section 627.428—despite
dismissing the case for lack of subject matter jurisdiction—because such a fee award
was “collateral to the merits.” Id. at 965 (citing Willy, 503 U.S. at 138) (other citations
omitted). The court, however, did not address the contrary holding in Jet Charter.
The Eleventh Circuit did tackle that conflict though in its recent decision in
Maronda Homes. See Maronda Homes, 2023 WL 3270065, at *1. That case was brought
by an insurer seeking a declaration that its policy did not cover a defective construction
claim asserted by two insureds. Southern-Owners Ins. Co. v. Maronda Homes, Inc. of Fla.,
2020 WL 1451684, at *1 (M.D. Fla. Mar. 25, 2020). The district court dismissed the
complaint on the basis that the amount in controversy did not sufficiently establish
diversity jurisdiction. Id. The insureds then sought section 627.428 fees, but the

12

district court sided with the insurer that it lacked subject matter jurisdiction to entertain
such a fee request because it was integral to the merits. Id. at *1–2. In doing so, the
district court relied on Jet Charter, noting that it respectfully disagreed with Prime
Insurance’s holding. Id. at *4–5.
On appeal, the Eleventh Circuit affirmed the district court’s ruling, albeit in a 21 decision that included three separate opinions. Maronda Homes, 2023 WL 3270065,
at *2. Writing for the majority, Judge Branch concluded that in light of Jet Charter, the
district court properly held that it lacked subject matter jurisdiction to consider the fee
motions because the section 627.428 fee awards were integral to the merits. Id. at *2
(citing Jet Charter, 739 F.2d at 536). Judge Branch rejected the insureds’ argument that
Prime Insurance compelled a different result because Prime Insurance was a non-binding,
unpublished decision, and the court was mandated to abide by the published Jet Charter
opinion. Id. at *3 (citations omitted).
Judge Branch recognized, however, that Florida cases decided after Jet Charter
called into question its reasoning that a section 627.428 award was integral to the
merits. Id. at *3 n.8 (citing Finkelstein v. N. Broward Hosp. Dist., 484 So. 2d 1241 (Fla.
1986); Travelers Indem. Co. v. Hutchins, 489 So. 2d 208 (Fla. Dist. Ct. App. 1986);
Advanced Chiropractic & Rehab. Ctr. v. United Auto. Ins. Co., 140 So. 3d 529 (Fla. 2014)).
In Finkelstein, for example, the Florida Supreme Court addressed whether the trial
court lacked jurisdiction to resolve a fee motion predicated on a medical malpractice

13

statute which allowed fees to a prevailing party. 484 So. 2d at 1242. The fee motion
was filed after the judgment on the main claim became final. Id.
The Court in Finkelstein concluded that the trial court properly exercised its
jurisdiction to award fees on the theory that the post-judgment motion was a
“collateral and independent claim” over which the trial court had “continuing
jurisdiction to entertain within a reasonable time.” Finkelstein, 484 So. 2d at 1243; see
also Advanced Chiropractic, 140 So. 3d at 536–37 (determining that a section 627.428 fee
motion made six days after the district court granted a petition for writ of certiorari
was timely because “the amount of attorney’s fees to be awarded in such circumstances
is appropriately decided after resolution of the merits of a cause of action”) (citation
omitted); Hutchins, 49 So. 2d at 209 (explaining that a default judgment was final for
purposes of appeal even though the court reserved jurisdiction to award fees under
section 627.428). Notably, however, Judge Branch declined to invoke the court’s
“discretionary authority to revisit Jet Charter” because the Finkelstein, Advanced
Chiropractic, and Hutchins cases were “distinguishable” both factually and
procedurally. Maronda Homes, 2023 WL 3270065, at *3 n.8 (citation omitted).
Judge Tjoflat specially concurred with Judge Branch’s opinion, stating that he
agreed with the affirmance of the district court’s dismissal of the fee petitions but for
different reasons. Id. at *4 (Tjoflat, J., special concurrence). According to Judge
Tjoflat, section 627.428 did not apply given the procedural posture of the litigation.
Id. Looking at section 627.428’s plain language, Judge Tjoflat found that “[t]he
defendant insureds (a) did not have a recovery and (b) did not receive a judgment or
14

decree ‘under a policy or contract.’” Id. at *5 (quoting Fla. Stat. § 627.428(1)). Judge
Tjoflat added that in his view, the court was not bound by either Jet Charter or Prime
Insurance given that the district court in Jet Charter reached the underlying merits of the
suit—unlike in Maronda Homes—and because Prime Insurance was unpublished. Id. at
*5.
The remaining member of the panel, Judge Grant, dissented. Id. at *6. (Grant,
J., dissent). Judge Grant took the position that Hutchins, Advanced Chiropractic, and
Finkelstein had “cast doubt” on Jet Charter to such an extent that Jet Charter was no
longer binding. Id. Judge Grant concluded that she would hold that section 627.428
fees were a collateral issue and would reverse the district court. Id. Judge Grant also
disagreed with Judge Tjoflat’s special concurrence on the ground that whether section
627.428 applied at all was “more properly understood as a merits question relating to
the parties’ attorney’s fees claims, and [did] not determine the district court’s
jurisdiction to consider those claims in the first place.” Id.
As a result of these three different approaches, Judge Branch included a footnote
explaining that the Maronda Homes decision should not be published because section
627.428 had been repealed. Id. at *4 n.9. Judge Branch additionally observed that the
court’s “three opinions [were] so fractured that they would provide no actionable
guidance and further complicate our law.” Id. (citing 11th Cir. R. 36-2, I.O.P. 6
(“Opinions that the panel believes to have no precedential value are not published.”)).
Judge Grant agreed with this footnote in her dissent, asserting that the case should not

15

be published. Id. at *6 (Grant, J., dissent). Judge Tjoflat, however, maintained that
the decision should be published given that “substantial disagreement among panel
members almost always warrant[s] publication” and because the repeal of section
627.428 “neither overturns Jet Charter nor makes [the court’s] discussion of it purely
academic” since “litigants can and do argue about statutes through analogy to other,
similar statutes and provisions.” Id. at *4 (Tjoflat, J., special concurrence).
Indeed, as in Maronda Homes, this case requires the Court to decide whether it
has jurisdiction to award fees to Blackwell under section 627.428 following a dismissal
of the underlying declaratory judgment action for lack of jurisdiction. Blackwell
contends that the Court should apply the Eleventh Circuit’s rationale in Prime Insurance
and hold that the Court retains jurisdiction to resolve Blackwell’s section 627.428 fee
request as a collateral issue. (Doc. 31). Blackwell likewise asks that the Court find Jet
Charter non-binding because it relied on cases—namely, Holmes and Barrs—that have
now been deemed “obsolete” and because all three opinions are “antithetical” to the
Supreme Court’s ruling in Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988). Id.
at 6–7. The Court finds Blackwell’s arguments unavailing.
In Budinich, the Supreme Court was presented with the issue of whether a
decision on the merits was final and appealable pursuant to 28 U.S.C. § 1291 even
where the recoverability and the amount of fees had yet to be determined. 486 U.S. at
199. In that case, the Court deemed fees under a Colorado employment law to be
collateral to the merits for purposes of determining appealability. Id. at 200. The Court

16

in Budinich acknowledged that some courts of appeals had held that “statutes creating
liability for attorney’s fees can cause them to be part of the merits relief for purposes
of [section] 1291.” Id. at 201 (citations omitted). The Court then concluded, however,
that as far as determining the finality of a decision is concerned, the impact of an
unresolved fee issue did not turn on “the characterization of those fees by the statute
or decisional law that authorizes them.” Id.
Contrary to Blackwell’s suggestion, Budinich did not undermine the Eleventh
Circuit’s reasoning in Jet Charter to such an extent that it is no longer binding. Rather,
the Supreme Court in Budinich addressed the finality of a decision under a federal
statute, i.e., section 1291, where fees were outstanding. Budinich, 486 U.S. at 199–201
(finding that “the [section] 1291 effect of an unresolved issue of attorney’s fees for the
litigation at hand should not turn upon the characterization of those fees by the statute
or decisional law that authorizes them”)

(emphasis added).

The Court’s

determination as to the “section 1291 effect” of how a particular law describes fees did
not invalidate the Eleventh Circuit’s assessment in Jet Charter that a section 627.428
fee award was integral to the merits. 7 See , e.g., Maronda Homes, 2023 WL 3270065
(Branch, J.) (“[W]e are bound to apply Jet Charter and must conclude that an award of
attorney[’]s fees under [section] 627.428 is integral to the merits.”). 8
The district court made this same point in Maronda Homes in finding that Budinich did not affect the
holding of Jet Charter. 2020 WL 1451684, at *3 n.6 (“Budinich has no bearing on Jet Charter’s statement
that a fee award under [section 627.428] is an integral part of the merits of the case, especially as Jet
Charter cited Florida law to support its conclusion.”) (quotations omitted).
8
As an unpublished decision, the majority opinion of Judge Branch in Maronda Homes is not binding
precedent, but it is persuasive authority for the reasons stated herein. See 11th Cir. R. 36-2; see also
7

17

Alternatively, Blackwell suggests that the Court should find Jet Charter “nonbinding” based on the arguments posited by either Judge Tjoflat in his special
concurrence or Judge Grant in her dissent in Maronda Homes. (Doc. 31 at 7–8). As
described above, Judge Tjoflat deemed Jet Charter inapplicable because, unlike in Jet
Charter, there was no decision on the merits in Maronda Homes. See Maronda Homes,
2023 WL 3270065, at *5 (Tjoflat, J., special concurrence). In essence, Judge Tjoflat
concluded that the district court did not have subject matter jurisdiction to consider
fees because the case did not actually implicate section 627.428. See id. (“[T]he
[d]istrict [c]ourt does not have subject matter jurisdiction to consider attorney[’s] fees
because this case never triggered the now-defunct Florida attorney[’s] fee provision.”).
Because the dismissal of this case likewise did not involve a merits determination,
Judge Tjoflat’s rationale does not support a fee award in favor of Blackwell.
As for Judge Grant’s dissent, in which she asserted that Florida law had eroded
the foundation upon which Jet Charter rests, see Maronda Homes, 2023 WL 3270065, at
*6 (Grant, J., dissent), the Court respectfully disagrees. At the outset, Blackwell offers
no analysis of the Florida case authority which—according to her—establishes that a
section 627.428 fee award is collateral to the merits of the case. (Doc. 31 at 8–9). Nor
does Blackwell confront Judge Branch’s explanation that Finkelstein, 484 So. 2d 1241,
Hutchins, 489 So. 2d 208, and Advanced Chiropractic, 140 So. 3d 529, are sufficiently

McNamara v. Gov’t Emps. Ins. Co., 30 F.4th 1055, 1061 (11th Cir. 2022) (“[A] district court shouldn't
simply cite to one of our unpublished opinions as the basis for its decision without separately
determining that it is persuasive.”).

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“distinguishable on factual and procedural grounds” and “are too varied to constitute
a definitive change in law.” Maronda Homes, 2023 WL 3270065, at *3 n.8; see also
Maronda Homes, 2020 WL 1451684, at *4 n.7 (finding that the Florida Supreme Court’s
decision in Finkelstein was distinguishable because it examined a medical practice
statute and discussed post-judgment motions after claims had been “tried and
resolved”). Indeed, there is decisional law that Blackwell’s terse treatment of this issue
amounts to a waiver on the matter. Hamilton v. Southland Christian Sch., Inc., 680 F.3d
1316, 1319 (11th Cir. 2012) (“[T]he failure to make arguments and cite authorities in
support of an issue waives it.”), overruled on other grounds in part by United States v.
Durham, 795 F.3d 1329, 1330 (11th Cir. 2015); Mendoza v. U.S. Att’y. Gen., 327 F.3d
1283, 1286 n.3 (11th Cir. 2003) (finding an issue to be abandoned where no argument
was made) (citations omitted).
In the absence of a meaningful argument from Blackwell on this important point
on which she bears the burden, Army Aviation, 504 F. Supp. 2d at 1269, the Court is
bound to follow Jet Charter’s conclusion that section 627.428 fees are integral to the
merits, Jet Charter, 739 F.2d at 536. Significantly, this approach coheres with section
627.428’s plain language, which provides that fees awarded under the statute “shall be
included in the judgment or decree rendered in the case.” Fla. Stat. § 627.428(3)
(2022). Prime Insurance does not persuade the Court to reach a different result.9 As a
Other courts have criticized Prime Insurance’s reasoning as well. See, e.g., Dakota, Minn. & E. R.R.
Corp. v. Schieffer, 715 F.3d 712, 713 n.2 (8th Cir. 2013) (rejecting Prime Insurance because it relied on
cases involving a court’s jurisdiction to award sanctions under federal law, i.e., Rule 11 and [section]
1447(c)); Torruella v. Nationstar Mortg., LLC, 308 So. 3d 674, 678 n.4 (Fla. Dist. Ct. App. 2020)
9

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result, the Court lacks jurisdiction to award fees under section 627.428 following its
dismissal of the case for lack of subject matter jurisdiction. See Jet Charter, 739 F.2d at
536; see also Maronda Homes, 2023 WL 3270065, at *1 (affirming the district court’s
holding that it lacked subject matter jurisdiction to entertain fee motions because it
had already dismissed the underlying action for lack of subject matter jurisdiction and
proclaiming that it was “bound by [its] published opinion in Jet Charter”).
Having determined that the Court lacks jurisdiction to enter the requested fee
award, the Court need not address the remaining issues raised by Blackwell in her fee
request. See Stanley, 639 F.2d at 1157 (“When a court must dismiss a case for lack of
jurisdiction, the court should not adjudicate the merits of the claim.”).
III.
In light of all the above, Blackwell’s Amended Motion for Entitlement to Attorney’s
Fees (Doc. 31) is denied.
SO ORDERED in Tampa, Florida, this 26th day of March 2024.

Copies to:
Counsel of record

(observing that Prime Insurance “seems to conflict with [Jet Charter], an earlier case which Prime
[Insurance] did not discuss,” and which stated that a section 627.428 fee award is integral to the merits
of the claim) (citing Maronda Homes, 2020 WL 1451684, at *4).

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