United Services Auto. Ass'n v. Kiibler, s. 77-2223
| Decision Date | 07 November 1978 |
| Docket Number | 77-2507,Nos. 77-2223,s. 77-2223 |
| Citation | 364 So.2d 57 |
| Parties | UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. Richard E. KIIBLER, as Administrator of the Estate of Carol Sue Brown Kiibler, Deceased, et al., Appellees. |
| Court | Florida District Court of Appeals |
Corlett, Merritt, Killian & Sikes, Greene & Cooper, Miami, for appellant.
Edward C. Vining, Jr. and Richard A. Burt, Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, for appellees.
Before BARKDULL and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
Appellant, defendant below, brings these consolidated appeals from two orders entered by the trial court awarding attorneys' fees in favor of appellees. We reverse.
On December 26, 1974, Pamela Stockton, Carol Kiibler and Donald McCray were occupants of an automobile which was traveling at an excessive rate of speed. The car left the roadway, struck a bridge abutment, crossed a canal, and flipped over. Both Stockton and Kiibler were killed instantly. McCray suffered serious personal injuries. Simon Stockton, surviving husband of Pamela Stockton, filed a wrongful death case against Martinez, the alleged owner of the vehicle, McCray, the alleged driver of the vehicle, and United Services Automobile Association (USAA), McCray's insurance company. Martinez filed an answer and cross-claim denying ownership of the vehicle at the time of the accident. USAA filed an answer and cross-claim for a declaratory judgment on the question of insurance coverage. It alleged that the car was not an insured vehicle under its policy. USAA answered Martinez's cross-claim by alleging that McCray owned the vehicle at the time of the accident. McCray denied the material allegations of the cross-claim.
Kiibler, the surviving husband of Carol Kiibler, also filed a wrongful death case. The defendants filed the same answers and cross-claims which were filed in Stockton's case.
McCray filed a declaratory judgment action to determine insurance coverage. USAA filed an answer and counterclaim in which it denied coverage and requested the trial court to adjudicate the coverage question.
These cases were consolidated. Stockton and Kiibler dropped Martinez as a party defendant.
USAA specifically denied coverage in each case on the grounds that the car was not an insured vehicle under the policy for which a premium had been paid and that it was not a temporary substitute automobile. USAA also moved to sever the coverage issue and to abate the death cases pending the coverage determination. This motion was denied.
Stockton and Kiibler filed motions for summary judgment on the coverage issues raised in USAA's pleadings. The trial court granted the motions and USAA appealed. McCray filed a motion for summary judgment in his declaratory judgment action. The trial court granted McCray's motion, and USAA appealed. These appeals were consolidated and this court affirmed the orders granting summary judgment on coverage.
The two death cases were brought to trial while the coverage appeals were pending. The trial lasted four days and ended with the jury awarding $40,000 to each estate, but nothing to the two husbands. Stockton and Kiibler moved for a new trial on damages, and the trial court granted the motions.
Before the cases were retried, both Stockton and Kiibler settled with McCray. The settlements provided that each of the estates would receive $50,000 and each of the husbands would receive $150,000. The settlements also provided that McCray would not be personally liable for payment of these sums. Instead, Stockton and Kiibler would look solely to USAA for payment.
After this court affirmed the trial court's coverage determination, McCray, Stockton, and Kiibler moved the trial court to award them reasonable attorneys' fees, pursuant to Section 627.428, Florida Statutes (1975), for the trial work...
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...While under Florida law, attorney's fees were not available to Myers on the state law battery count, see United Svcs. Auto. Ass'n v. Kiibler, 364 So.2d 57, 58 (Fla.Dist. Ct.App.1978), Title VII provides that "the court, in its discretion, may allow the prevailing party ... a reasonable atto......
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