Gibson v. Walker, NN-31
| Decision Date | 27 February 1980 |
| Docket Number | No. NN-31,NN-31 |
| Citation | 380 So.2d 531 |
| Parties | D. Leroy GIBSON, Appellant, v. D. J. WALKER, Appellee. /T1-44. |
| Court | Florida District Court of Appeals |
R. K. Roberson of Roberson & Roberson, De Land, for appellant.
Leighton D. Yates, Jr., of Maguire, Voorhis & Wells, P. A., Orlando, for appellee.
Plaintiff below appeals from a final judgment awarding attorney's fees, interest and costs in a suit on an insurance policy. Appellant contends that the trial court erred in not allowing sufficient interest or attorney's fees in the final judgment.
Appellant was the insured in an insurance policy written by a group of underwriters associated with Lloyds of London, covering physical damage and theft on a certain trailer owned by appellant. The trailer was stolen on February 8, 1978, and while the defendant insurer was notified of the loss almost immediately, a formal proof of loss was not filed with defendant until May 22, 1978. The policy contains a provision that the loss is not payable until 60 days after the verified proof of loss is submitted to the underwriters.
On June 20, 1978, prior to the expiration of the 60-day period, the insured filed suit in the court below, alleging the loss and demanding the full limits of the policy, plus interest, costs and attorney's fees. On July 17, 1978, the agent for the underwriters mailed to appellant a check for $22,000, the full limits of the policy, in full payment of the loss. Appellant received the check on July 22, 1978. Appellant, through his counsel, refused to accept the check in full payment, claiming that interest and attorney's fees were due. Through later correspondence with defendant's attorneys, it was agreed that the check could be negotiated without prejudice to appellant's claim for interest and attorney's fees, although appellee continued to insist that it had paid appellant $22,000 " . . . in full, final and complete payment of plaintiff's claim. . . . " At no time did appellee concede its liability for, or offer to pay either interest or attorney's fees.
In this posture the case proceeded to trial before a jury. At the conclusion of the evidence, the court directed a verdict on the issue of liability, and then the court proceeded to hear testimony on the issue of interest and attorney's fees. At the conclusion of the evidence the court apparently found that the insurer had not made timely payment and that it would award plaintiff interest from the date the proof of loss was received until the date when the insured received the check. No objection was made to this ruling, and we find that error, if any, as to the award of interest has not been preserved for appeal.
On the matter of attorney's fees, the trial court concluded that the insured was entitled to recover such fees for services rendered by his attorney up to the time the insurance proceeds were received (July 22, 1978), but not beyond. The insured contends that he is entitled to recover a reasonable attorney's fee up to and including the trial, an effort that involves a far greater expenditure of time than was involved up to the date payment was received, so we address that issue. It should be noted that appellee does not assert error in the award of attorney's fees to appellant, but resists the payment of any additional fees after July 22, 1978, by contending that from that date forward, the attorney was working for himself, and not for appellant.
Attorney's fees are recoverable in a suit by the insured against his insurer by virtue of § 627.428, Fla.Stat. (1977). 1 We must determine at what point in these proceedings the obligation for attorney's fees terminated, whether at the time the policy proceeds were received, as contended by appellee, or at the conclusion of the trial, as contended by appellant. We conclude that in this case, the appellant was entitled to recover attorney's fees through the final judgment, and consequently we must reverse.
Several appellate decisions in Florida discuss the problems arising under this statute, but we believe the persuasive opinion is found in Cincinnati Insurance Company v. Palmer, 297 So.2d 96 (Fla. 4th DCA 1974). One of the issues there decided was whether the obligation for attorney's fees existed at all if the policy proceeds were paid after suit was filed, but before final judgment. That court held, and we think correctly so, that the statutory obligation for...
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