Bresky Law Obtains Affirmance of Attorney Fee Award Against Insurer Arising Out of Car Accident Resulting in Injuries

October 28, 2021

Bresky Law recently obtained affirmance of an attorney’s fee award against an insurance company, arising out of a car accident in which our clients sustained injuries. 

The plaintiffs were a married couple who were injured in a car accident when another driver ran them off the road. The plaintiffs were driving their friend’s car at the time of the accident. They later file a declaratory action against their automobile insurer to determine the priority, existence, and amount of coverage in relation to that provided by their friend’s automobile insurer. The plaintiffs’ insurer refused to admit coverage and engaged in years of protracted litigation with the plaintiffs. 

The trial court eventually entered a final judgment in favor of the plaintiffs after a trial in the declaratory relief action. The trial court found that the plaintiffs were each entitled to $250,000 in uninsured motorist coverage. The trial court also determined which insurer was primary and which was secondary, and estopped the plaintiffs’ insurer from contending that the wife’s testimony should be disregarded under a certain provision in the insurance policy. The trial court later awarded the plaintiffs their attorney’s fees pursuant to section 627.428, Fla. Stat., and also applied a contingency fee multiplier to the fees awarded. The insurer appealed the judgment awarding attorney’s fees.

We represented the plaintiffs in the Fourth District Court of Appeal (“Fourth DCA”). We argued that the trial court properly awarded our clients their attorney’s fees because such an award was required by the plain language of section 627.428. In response to the insurer’s argument that our clients obtained nothing by their judgment, we explained that our clients succeeded in obtaining a judgment in their favor as to the priority, existence, and amount of coverage. We argued that the award of fees was consistent with the statute’s purpose to penalize an insurance company for wrongfully causing its insured to resort to litigation in order to resolve a conflict with its insurer when it was within the company’s power to resolve it. We pointed out that the insurer could have taken a number of actions that would not have required our clients to litigate for years.

We also argued that the trial court properly applied a contingency fee multiplier to the attorney’s fee award. We maintained that the trial court’s exercise of judicial discretion to apply a fee multiplier was firmly supported by the evidence regarding the factors explained in Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828, 834 (Fla. 1990). The plaintiffs’ fee expert had testified there were few attorneys in Martin County who would take such a case. The plaintiffs’ trial attorney had testified regarding the amount of risk involved and that he had no way to mitigate the high risk of nonpayment.

The Fourth DCA affirmed the final judgment by per curiam affirmance (“PCA”). The Fourth DCA also granted our clients’ request for appellate attorney’s fees. This favorable result for our clients preserved the favorable final judgment awarding attorney’s fees and allows them to seek payment of the attorney’s fees they incurred in the appeal.