Salter v. National Indem. Co., E-285

• Decision Date: 28 January 1964
• Docket Number: No. E-285,E-285
• Citation: 160 So.2d 147
• Parties: Harold L. SALTER, Appellant, v. NATIONAL INDEMNITY CO., Appellee.
• Court: Florida District Court of Appeals

Page 147

160 So.2d 147

Harold L. SALTER, Appellant, v. NATIONAL INDEMNITY CO., Appellee.

No. E-285.

District Court of Appeal of Florida, First District.

Jan. 28, 1964.

Marks, Gray, Yates, Conroy & Gibbs, Jacksonville, for appellant.

Howell, Kirby, Montgomery & Sands, Jacksonville, for appellee.

WIGGINTON, Judge.

This suit was commenced for the purpose of recovering the proceeds of an insurance policy issued by appellee covering the loss by theft of a motor vehicle owned by appellant. By summary judgment the trial court awarded appellant the face amount of the insurance policy plus interest, but denied appellant's claim for attorney's fees. The only question presented for our decision on this appeal is whether the trial court erred in holding that appellant, as insured under the policy sued upon was not entitled to a reasonable sum as fees or compensation for his attorney incurred in the prosecution of this suit.

The pertinent statutory law of this state provides that upon the rendition of a judgment or decree by any of the courts of this state against an insurer in favor of an insured or the named beneficiary under a policy or contract executed by the insurer, the trial judge shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured's or beneficiary's attorney prosecuting the suit in which the recovery is had. ¹

The foregoing statute allowing recovery of attorney's fees by successful claimants under an insurance policy is in the nature of a penalty imposed upon insurance companies who wrongfully refuse to pay a beneficiary any amount due under a policy or contract of insurance issued by it. ² . The fact that an insurance company's refusal to pay the amount owed by it under the terms of its contract of insurance was in good faith and on reasonable grounds does not necessarily relieve it from liability for payment of attorney's fees. ³ The purpose of the statute is to discourage the contesting of insurance policies in Florida courts and to reimburse successful plaintiffs reasonably for their outlays for attorney's fees when a suit is brought against them, or they are compelled to sue in Florida courts to enforce their contracts. ⁴

That provision of the judgment appealed which denied plaintiff's claim for attorney's fees recites:

'The claim of plaintiff asserted herein for an attorney's fee in addition to the aforesaid recovery be, and the same is, hereby denied for the reason that it appears there was no wrongful refusal of the defendant to pay the proceeds of its policy.'

An examination of the record before us reveals the following undisputed facts. Plaintiff's truck which was insured against loss by theft under the policy issued by defendant was stolen on or about July 9, 1960. Appellee was promptly notified of the loss, following which its insurance adjusters commenced investigating the claim. Ten months transpired and no offer to pay the amount of insurance due under the policy was made by the company. The policy provides that in the event of loss by theft a sworn proof of loss must be filed by the insured with the company which is allowed thirty days thereafter within which to make payment. From his conversations with appellant and appellee's adjusters, the attorney representing appellant was led to erroneously assume that the proof of loss required by the policy had been filed. Upon the company's failure or refusal to pay the amount due appellant, suit on the policy was instituted in the Circuit Court of Duval County. The complaint contained the usual allegations necessary to state a cause of action, and among other things alleged that plaintiff had complied with all conditions and provisions of the insurance policy, including the filing of a proof of loss.

The defendant insurance company filed its answer to the complaint denying liability and affirmatively alleging that the proof of loss required by the terms and provisions of the insurance policy had not been filed with it. Upon the filing of the foregoing affirmative defense, appellant's counsel promptly prepared and furnished to defendant a properly executed proof of loss. An amended complaint was thereafter filed in the cause containing two counts, one alleging compliance with the provisions of the policy by filing with the company the required proof of loss, and the second count alleging the filing of the policy provision requiring the filing of a proof of loss. Plaintiff then filed a motion for summary judgment which was heard and denied by the trial court which concluded that from the pleadings and other evidence contained in the file, a genuine issue of a material fact existed with respect to the count of the complaint alleging waiver of compliance with the policy respecting the filing of proof of loss, and that no recovery could be had on the count alleging compliance with the policy provisions by the filing of a proof of loss, because such proof had not been filed prior to the institution of the suit. The court's ruling on plaintiff's motion for summary judgment left him the choice of attempting to recover the amount due him on the single theory that the company had waived the policy requirements with respect to the filing of proof of loss, or to file a new suit alleging alternatively...