DeSalvo v. Scottsdale Ins. Co., 97-438

• Decision Date: 30 January 1998
• Docket Number: No. 97-438,97-438
• Parties: 23 Fla. L. Weekly D430 John DeSALVO, as Personal Representative of the Estate of H.P. Demery, Deceased, d/b/a, Port City Trading, Appellant/Cross Appellee, v. SCOTTSDALE INSURANCE COMPANY, a foreign insurance corporation, Appellee/Cross Appellant.
• Court: Florida District Court of Appeals

Page 694

705 So.2d 694

23 Fla. L. Weekly D430

John DeSALVO, as Personal Representative of the Estate of H.P. Demery, Deceased, d/b/a, Port City Trading, Appellant/Cross Appellee, v. SCOTTSDALE INSURANCE COMPANY, a foreign insurance corporation, Appellee/Cross Appellant.

No. 97-438.

District Court of Appeal of Florida,

First District.

Jan. 30, 1998.

H. Tyrone Tyler and J. Clark Hamilton, Jacksonville, for appellant/cross appellee.

Andrew P. Rock of Neilson and Associates, Orlando, for appellee/cross appellant.

WOLF, Judge.

John DeSalvo (DeSalvo), personal representative of the estate of H.P. Demery, deceased, d/b/a Port City Trading, appeals from a final judgment which, among other things, denied appellant's request for attorney's fees and costs. Scottsdale Insurance Company (Scottsdale) cross appeals from an award of prejudgment interest in favor of DeSalvo. We determine that (1) the trial court erred in denying DeSalvo's request for attorney's fees which were incurred prior to the filing of Scottdale's third offer of judgment; (2) the trial court improperly calculated whether plaintiff's recovery exceeded the offer of judgment when it failed to include the amount of attorney's fees incurred by the plaintiff up until the offer of judgment; (3) the trial court improperly denied plaintiff's request to be awarded costs; and (4) the trial court properly awarded prejudgment interest in favor of DeSalvo.

DeSalvo is the personal representative of the estate of a decedent owner of certain property insured by appellee against, among other things, damage or loss caused by fire. The coverage limit under the policy was $563,000, and the policy included an appraisal provision which appellee later asserted was "in the nature of an arbitration agreement."

The property was significantly damaged by fire on January 13, 1995, and DeSalvo filed a sworn proof of loss with appellee on January 25, 1995, pursuant to the terms of the policy, claiming that the value of his loss totaled the coverage limit of the policy--$563,000. Scottsdale apparently failed to respond in any fashion to DeSalvo's sworn proof of loss within 30 days of having received it, as required by the terms of the policy. DeSalvo filed this action in March 1995 to recover the amount of the claimed loss plus interest, as well as attorneys' fees and costs. Scottsdale later concluded that DeSalvo's loss totaled only $405,402.08, and it paid DeSalvo only that amount at some point after the lawsuit was filed.

The proceedings in this case were later suspended while the parties engaged in the appraisal process following an opinion from this court upholding the validity of the policy's appraisal provision. See Scottsdale Ins. Co. v. Desalvo, 666 So.2d 944 (Fla. 1st DCA 1995). While the interlocutory appeal regarding the validity of the appraisal provision had been pending, however, the parties had proceeded with this litigation, including discovery, despite Scottsdale's attempt to stay the proceedings, pending the outcome of the appeal. DeSalvo apparently continued to litigate because appellee had indicated that it would only accept appraisal while the appeal was pending if DeSalvo agreed to waive his claims for attorneys' fees, interest, and costs. Before the interlocutory appeal had been decided, Scottsdale had filed two offers of judgment which included taxable costs and attorneys' fees; the first totaled $101, and the second totaled $50,001. After the interlocutory appeal had been decided, Scottsdale had filed another offer of judgment which also included taxable costs and attorney's fees and totaled $100,001. DeSalvo accepted none of these offers.

The appraisal process resulted in an assessment of loss totaling $489,536--a $84,133.92 difference in favor of DeSalvo from the amount already paid by Scottsdale. Scottsdale paid DeSalvo the $84,133.92 on July 16, 1996. The trial court thereafter confirmed the appraisal award on August 7, 1996, and directed the parties to file written memoranda on the issue of attorney's fees which DeSalvo had requested pursuant to section 627.428, Florida Statutes (1995).

In addition to attorney's fees, DeSalvo also requested the trial court to enter an award of prejudgment interest on the amount recovered in appraisal calculated from 30 days after the sworn proof of loss had been submitted. The trial court denied DeSalvo's request for attorney's fees on the authority of Baker Protective Servs. v. FP, Inc., 659 So.2d 1120 (Fla. 3d DCA 1995), rev. denied, 669 So.2d 250 (Fla.1996), and also denied taxable costs. However, the court awarded DeSalvo prejudgment interest as part of the award.

Section 627.428, Florida Statutes (1996), 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 or, in the event of an appeal in which the insured or beneficiary prevails, the appellate 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 insureds or beneficiaries attorney prosecuting the suit in which the recovery is had.

A...