Independent Fire Ins. Co. v. Lugassy, Nos. 90-1626

CourtCourt of Appeal of Florida (US)
Writing for the CourtFERGUSON
Citation609 So.2d 51
Decision Date20 October 1992
Docket NumberNos. 90-1626,90-2861,91-783
Parties17 Fla. L. Week. D2423 INDEPENDENT FIRE INSURANCE COMPANY, Appellant, v. Jacques LUGASSY and Debra Lugassy, Appellees.

Page 51

609 So.2d 51
17 Fla. L. Week. D2423
INDEPENDENT FIRE INSURANCE COMPANY, Appellant,
v.
Jacques LUGASSY and Debra Lugassy, Appellees.
Nos. 90-1626, 90-2861, 91-783.
District Court of Appeal of Florida,
Third District.
Oct. 20, 1992.
Rehearing Denied Jan. 5, 1993.

Page 52

Arthur J. Morburger, Weinstein, Bavly & Moon and Alvin N. Weinstein, Miami, for appellant.

Ferrell, Cardenas, Fertel, Rodriguez & Mishael, Miami, Friend, Fleck & Gettis, South Miami, Evan J. Langbein, Miami, for appellees.

Before NESBITT, FERGUSON and LEVY, JJ.

ON MOTION FOR CLARIFICATION

FERGUSON, Judge.

Jacques and Debra Lugassy filed a claim for loss of personal property with their insurer, Independent Fire Insurance Company, after their home and its contents were destroyed by fire. The insurer denied the claim asserting that the loss was caused by the Lugassys' arson and not covered under the policy. This lawsuit was brought for loss benefits totalling $135,000. A jury found in the Lugassys' favor, and awarded $67,250.60 to which the court added $31,956.60 in prejudgment interest. 1 Pursuant to section 627.428, Florida Statutes (1991), the trial court awarded $315,879.80 in attorney's fees and $11,912.96 in costs. This appeal is from the order awarding costs and fees.

Independent's principal contention on appeal is that the award of fees in a sum which exceeded the fee agreement between the Lugassys and their lawyers was impermissible. We agree and reverse. The facts relating to the fee agreement are as follows.

In 1986, the Lugassys entered into a retainer agreement with attorney Milton M. Ferrell, Jr. The agreement provided that Ferrell would be paid on a contingency basis and the total fee due Ferrell would not exceed 45 percent of any recovery.

The law firm of Friend & Fleck and attorney David Mishael later appeared as additional counsel. No retainer agreement was entered into regarding new counsel. In November 1989, the case went to trial. After the jury retired to deliberate a verdict, a discussion allegedly took place between the Lugassys and their attorneys about the previously agreed-upon fee arrangement. On the Monday following the successful jury verdict, attorney Mishael and the Lugassys signed a letter memorializing their attorneys' fee discussion. The letter provided:

As you know we had a discussion today while the jury was out, referable to the retainer agreement concerning this action.

As I reminded you in our discussion, the Court, by virtue of Florida case law can, and should, award attorneys' fees should we prevail. You indicated during our conversation that you understood our initial contract and the intent of that contract to allow for recovery by Friend & Fleck and Ferrell, Williams, P.A. of such court awarded attorneys' fees in lieu of the percentage fees. I wanted to reiterate our intent and understanding and reconfirmation of this intent this afternoon.

To the extent that this letter modifies, in any way, shape, or form our existing fee contract, the contract is heretofore so modified. Please sign this letter confirming the intent of our agreement as stated above.

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