Carlough v. Nationwide Mut. Fire Ins. Co.

Decision Date11 December 1992
Docket NumberNo. 91-03574,91-03574
Citation609 So.2d 770
CourtFlorida District Court of Appeals
Parties17 Fla. L. Week. D2787 Stephen P. CARLOUGH, Appellant, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellee.

Michael R.N. McDonnell, Naples, for appellant.

George A. Vaka and Nancy A. Lauten of Fowler, White, Gillen, Boggs, Villareal and Banker, P.A., Tampa, for appellee.

PARKER, Judge.

Stephen Carlough appeals the trial court's order denying Carlough's request for attorney's fees pursuant to section 627.428, Florida Statutes (1991). 1 We reverse.

In his amended complaint, Carlough alleged that fire damaged his boat, that Nationwide insured the boat, and that Nationwide refused to pay the money due him by virtue of the existing insurance policy. Carlough also sought attorney's fees for Nationwide's breach of the contract.

The jury found that Nationwide breached its contract of insurance with Carlough, decided the actual cash value of the vessel, and decided that the vessel was not a total loss as a result of the fire. The jury decided that the total cost of repairs was $68,287, over and above Nationwide's advance payments of $25,551.36, and awarded storage costs of $4,500. The trial court entered a final judgment in favor of Carlough in the amount of $72,787 and reserved jurisdiction to determine entitlement to attorney's fees and costs.

At the hearing for attorney's fees, Mr. Schold, Carlough's trial counsel, testified to the following facts. Nationwide authorized repairs of the boat and made some advance payments for these repairs. Thereafter, Nationwide suddenly ceased payments to allow work to proceed in a timely fashion. Carlough sent a letter to Nationwide, through his counsel, that demanded the issues be resolved within forty-five days. Nationwide failed to provide the covered benefits within that time frame, and the instant litigation was commenced after eight to ten months of effort to resolve the matter. Copies of the letters which Mr. Schold had sent to Nationwide were introduced into evidence.

Nationwide's attorney (Mr. Adams) advised the trial court prior to hearing testimony:

On behalf of Nationwide, we would object to any testimony with reference to a coverage issue in this case, because the Court, by its own words, submitted this case to the jury only on the issue of damages, and the verdict form itself indicated that Nationwide had paid $26,000 in previous payments towards the repair of the vessel and, therefore, coverage was never an issue. It was never denied that payments were made, and if the Court will recall the testimony that Nationwide only stopped making repairs when Mr. Schold sent a letter and told them to quit. What's the issue of coverage in this case, as far as 6.7428 [sic] is concerned?

We would object to any testimony from Mr. Schold or anybody else to get up there and rehash to this Court what the issues in this...

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6 cases
  • Tracey v. Wells Fargo Bank, N.A.
    • United States
    • Florida District Court of Appeals
    • 27 Febrero 2019
    ...with directions that the circuit court enter an involuntary dismissal of the foreclosure complaint."); Carlough v. Nationwide Mut. Fire Ins. Co., 609 So.2d 770, 771-72 (Fla. 2d DCA 1992) ("Under the circumstances, upon remand, Nationwide should not be given a second bite at the apple to pre......
  • Walker v. State
    • United States
    • Florida District Court of Appeals
    • 21 Diciembre 2007
    ...he or she previously neglected to present despite having sufficient opportunity to do so. See, e.g., Carlough v. Nationwide Mut. Fire Ins. Co., 609 So.2d 770, 771-72 (Fla. 2d DCA 1992). This explains our court's decision to distinguish between those cases in which a proper objection was lod......
  • Spencer v. Ditech Fin., LLC
    • United States
    • Florida District Court of Appeals
    • 4 Abril 2018
    ...WL 1023916 (Fla. 2d DCA Feb. 23, 2018); Airsman v. Airsman, 179 So.3d 342, 345 (Fla. 2d DCA 2015) ; Carlough v. Nationwide Mut. Fire Ins. Co., 609 So.2d 770, 771–72 (Fla. 2d DCA 1992) (citing In re Forfeiture of 1987 Chevrolet Corvette, 571 So.2d 594, 596 (Fla. 2d DCA 1990) ). This is as it......
  • Evans v. HSBC Bank, USA, Nat'l Ass'n
    • United States
    • Florida District Court of Appeals
    • 5 Mayo 2017
    ...952, 955 (Fla. 2d DCA 2013) (alteration in original) (quoting Morton's , 48 So.3d at 80 )); see also Carlough v. Nationwide Mut. Fire Ins. Co. , 609 So.2d 770, 771–72 (Fla. 2d DCA 1992) ("[U]pon remand, Nationwide should not be given a second bite at the apple to present evidence which it f......
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