Allstate Ins. Co. v. Jenkins

• Decision Date: 19 March 2010
• Docket Number: No. 5D08-4164.,5D08-4164.
• Citation: 32 So.3d 163
• Parties: ALLSTATE INSURANCE COMPANY, Appellant, v. Dave Lee JENKINS, Appellee.
• Court: Florida District Court of Appeals

32 So.3d 163

ALLSTATE INSURANCE COMPANY, Appellant, v. Dave Lee JENKINS, Appellee.

No. 5D08-4164.

District Court of Appeal of Florida, Fifth District.

March 19, 2010.

David B. Shelton, of Rumberger, Kirk & Caldwell, P.A., Orlando, for Appellant.

Roy D. Wasson, of Wasson and Associates, Chartered, Miami, and Marianne R. Howanitz of Daniel L. Hightower, P.A., Ocala, for Appellee.

PALMER, J.

In this uninsured motorist coverage lawsuit, Allstate Insurance Company (Allstate) appeals the final judgment entered by the trial court on the jury's verdict in favor of Dave Jenkins. Finding no reversible error in the final judgment, we affirm without further discussion. Allstate also appeals the trial court's order conditionally awarding Jenkins attorney's fees pursuant to his demand for settlement filed below. That order is not a final appealable order; therefore, this court lacks the legal authority to review it at the present time.

At the close of the trial below, a verdict was entered in Jenkins' favor in the combined total of $119,237.99. The parties agree that, after set-offs, the net verdict was $94,717.59.

Jenkins filed a motion for attorney's fees pursuant to section 768.79 of the Florida Statutes (2005) based on Jenkins' previously filed demand for settlement in which he offered to settle his uninsured motorist claims for the combined policy limits of $75,000.00. The motion stated that a fee award would be warranted provided that the net judgment totaled $93,750.00.

Jenkins thereafter filed a motion seeking leave to amend his complaint to set forth a statutory claim of bad faith against Allstate. See §§ 624.155; 627.727(10), Fla. Stat. (2005). The trial court granted the motion, but abated resolution of the bad faith claims pending resolution of the instant appeal.

The trial court then entered a partial final judgment. The court reduced the net verdict to the available uninsured motorist policy limits of $75,000.00, and then added in an award of costs in the amount of $15,968.33, for a net judgment of $90,968.33. In its order, the trial court expressly reserved jurisdiction to determine any and all statutory bad faith claims.

On the same day, the trial court entered a separate order awarding Jenkins attorney's fees in the amount of $200,723.75. However, the court ruled that, pursuant to the law as expressed in Allstate Insurance Company v. Sutton, 707 So.2d 760 (Fla. 2d DCA 1998), the award was

contingent upon, and shall not be executed until, a judicial finding of bad faith on the part of the Defendant, ALLSTATE INSURANCE COMPANY. This court, or any court presiding over the Plaintiff's related bad faith claims, shall provide for Entry of Final execution of this Final Judgment once it has been judicially determined that ALLSTATE INSURANCE COMPANY acted in bad faith.

Allstate challenges this ruling arguing that the trial court's reliance on Sutton was misplaced. This court lacks the authority to review this claim of error at this time because the trial court's attorney's fee order constitutes a non-final, non-appealable order.

To that end, the law is well-settled that an attorney's fee award is not appealable until both the issues of entitlement and amount are ruled upon. Here, because the issue of Jenkins' entitlement to recover his claim for statutory fees is contingent upon future events occurring in the still pending bad faith litigation, the attorney's fee award...