Allstate Ins. Co. v. Sutton

• Decision Date: 09 January 1998
• Docket Number: No. 97-00936,97-00936
• Citation: Allstate Ins. Co. v. Sutton, 707 So.2d 760 (Fla. App. 1998)
• Parties: 23 Fla. L. Weekly D177 ALLSTATE INSURANCE COMPANY, Appellant, v. Vonnie B. SUTTON, Appellee.
• Court: Florida District Court of Appeals

Page 760

707 So.2d 760

23 Fla. L. Weekly D177

ALLSTATE INSURANCE COMPANY, Appellant, v.Vonnie B. SUTTON, Appellee.

No. 97-00936.

District Court of Appeal of Florida Second District.

Jan. 9, 1998.

Rehearing Denied Feb. 9, 1998.

Bonita Kneeland Brown of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for Appellant.

Joel S. Perwin of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, for Appellee.

FRANK, Acting Chief Judge.

Allstate Insurance Company has appealed from a final judgment awarding attorneys' fees and costs to Vonnie B. Sutton under section 768.79, Florida Statutes(1995).We affirm the order awarding fees and costs; however, we remand for the trial court to vacate that portion of the judgment providing for immediate execution.As will be shown, Mrs. Sutton's right to execute on the judgment is contingent upon an event that has not yet occurred and in fact might never occur--a judicial finding that Allstate acted in bad faith in its dealings with Mrs. Sutton.

Mrs. Sutton sued Allstate, her uninsured motorist carrier, as well as the owner and driver of the uninsured vehicle, after an automobile accident that injured her and killed her husband.Prior to trial, Mrs. Sutton issued to Allstate a demand for judgment in the total sum of $100,000, the limits of the uninsured motorist policy.That demand specifically tracked the statutory language of section 768.79, Florida Statutes(1995), stating that, in the event the demand was not accepted, "Plaintiff will be entitled to reasonable costs and attorney's fees incurred from the date of service of this demand where Plaintiff'recovers final judgment' greater than 25% of this demand."

The jury's verdict awarded Mrs. Sutton damages of more than $300,000 for bodily injury and $92,000 for the emotional distress she suffered from witnessing her husband's injuries.Allstate then filed a post-trial motion for judgment to conform to policy limits of $100,000.Mrs. Sutton filed her own motion for attorneys' fees and costs under section 768.79, contending that the fee provision of the statute was triggered because the verdict was greater than 125% of her demand.After a hearing, the court conformed the judgment to the policy limits without objection by Mrs. Sutton's counsel.Allstate thereupon argued that Mrs. Sutton was not entitled to fees under section 768.79 because the final judgment entered against it was the same amount as the demand--$100,000.Mrs. Sutton's counsel, however, contended that a bad faith claim against Allstate for its failure to settle for the policy limits would be filed.Upon a finding of bad faith, section 768.79 would be triggered and Mrs. Sutton would be entitled to fees.Ultimately, the trial court entered a second amended final judgment against Allstate on its liability of $100,000, reserving jurisdiction to determine entitlement to attorneys' fees and costs pursuant to the demand for judgment.Allstate appealed; the judgment was affirmed; and Allstate satisfied the $100,000 judgment.

After conclusion of the appeal, the trial...