STATE FARM MUT. AUTO. INS. CO. v. Petersen

• Decision Date: 15 October 2003
• Docket Number: No. 4D02-3043.,4D02-3043.
• Citation: 855 So.2d 1248
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Cherice PETERSEN, Appellee.
• Court: Florida District Court of Appeals

855 So.2d 1248

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Cherice PETERSEN, Appellee.

No. 4D02-3043.

District Court of Appeal of Florida, Fourth District.

October 15, 2003.

Frances F. Guasch of Luis E. Ordonez & Associates, Miami, for Appellant.

Guy Bennett Rubin of Rubin & Rubin, Stuart, for Appellee.

TAYLOR, J.

In this uninsured motorist action, State Farm Mutual Automobile Insurance Company appeals from a final judgment awarding costs and attorney's fees under section 627.428, Florida Statutes 2001. We reverse because the record shows that State Farm did not dispute coverage under the policy, as is required for recovery of fees pursuant to section 627.727(8), Florida Statutes.

Appellee was involved in a rear-end collision and sought uninsured motorist benefits from her insurance carrier, State Farm. In response to the allegation in appellee's complaint that "an insurance policy existed between Plaintiff ... and State Farm," State Farm answered that it "admits the existence of an automobile insurance policy and states that the policy provisions speak for themselves." It denied all other factual allegations, disputed the amount of damages, and asserted a threshold defense.

During litigation, appellee filed a civil remedy notice, which State Farm was required to cure within sixty days. Just before trial, within the sixty-day period, State Farm cured the notice and tendered its policy limits. The parties then settled. Later, after appellee moved to compel enforcement of the settlement, the settlement was enforced and a release was executed.

Thereafter, appellee moved for attorney's fees and costs, pursuant to section 627.428, Florida Statutes. State Farm opposed the motion, arguing that appellee was not entitled to fees and costs because section 627.727(8), Florida Statutes, precludes an award of attorney's fees in an uninsured motorist action where there is no denial of uninsured motorist coverage. While conceding that State Farm admitted "the existence of the policy," appellee contended that this admission was not an admission of coverage. The trial court agreed and granted appellee's motion for attorney's fees and costs on the authority of Wollard v. Lloyd's and Companies of Lloyd's, 439 So.2d 217 (Fla.1983), and Moore v. Allstate Insurance Co., 570 So.2d 291 (Fla.1990).

In Wollard, the supreme court held that a settlement between an insured and insurer provides a basis for an award of attorney's fees to the insured under section 627.428, Florida Statutes. In Moore, however, the court clarified that section 627.727(8), Florida Statutes, limits the fees awardable under section 627.428 to those UM actions where the insurance carrier denies coverage. Section 627.727(8) provides:

The provisions of s. 627.428 do not apply to any action brought pursuant to this section against the uninsured motorist insurer unless there is a dispute over whether the policy provides coverage for an uninsured motorist proven to be liable for the accident.

The supreme court allowed the recovery of fees in Moore, because, unlike here, the carrier initially disputed the existence of UM coverage for the accident. Holding that the plaintiff could recover fees only for that portion of the case where the carrier disputed coverage, the court explained that the uninsured motorist provisions of section 627.727 were intended to place the injured party in the same position as he would have been had the tortfeasors been insured. Id. at 293. The court stated:

Section 627.727(8) accomplished this purpose by directing that an insurer pay attorney's fees for the coverage issue when the insured prevails. We can find no legislative intent to place the insured in a better position than he would have been in if the tortfeasor had been insured.

In this case, the trial court relied on Moore in awarding attorney's fees to appellee. Apparently, after reviewing State Farm's answer and affirmative defenses, the trial court concluded that State Farm had denied coverage.

Our review of the pleadings and litigation below, however, leads us to conclude that State Farm did not dispute the existence of UM coverage for this accident, but rather defended the action based on non-coverage issues. State Farm specifically admitted the existence of insurance coverage. It denied the following allegations of paragraph 9 of the complaint:

[P]ursuant to the uninsured/underinsured motorist provisions of the Plaintiff's insurance policy and

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