South Florida Personal Injury Lawyers Blog
Under Florida Statute § 627.428, a party may be eligible to recover attorneys’ fees when a policyholder prevails and recovers actual insurance proceeds. However, not every insurance dispute or coverage lawsuit results in an award of attorneys’ fees. Typically, Florida courts authorize recovery of attorneys’ fees when the insurer has “wrongly withheld payment of the proceeds” of a policy. The law does not permit recovery of attorneys’ fees if the insured does not recover money or benefits, or if the court determines that the insurance company never wrongfully withheld payments.
Recently, the District Court of Appeal of the State of Florida issued an opinion addressing whether attorneys’ fees were appropriate. In this case, the plaintiff filed a negligence lawsuit against an at-fault driver. The defendant passed away during the proceedings, and the plaintiff substituted his estate as a party defendant. While awaiting the case’s status, the trial court ordered the plaintiff to set up the estate for the defendant and substitute the defendant’s estate for his name. During this time, an estate was created for the defendant in probate court. The court did not name a personal representative, and the plaintiff substituted “John Doe” for the defendant in his complaint. After that, the probate court appointed a representative, however, the plaintiff failed to amend his complaint to include this update.
The plaintiff proposed a settlement agreement, and the defendants moved to dismiss the claim, arguing that the complaint named “John Doe” as the personal representative. The trial court ordered the plaintiff to amend his complaint, and a jury found in favor of the plaintiff. The plaintiff argued that he was entitled to attorneys’ fees, because the defendants rejected his initial settlement offer.
Under Florida’s Rule of Civil Procedure Statute 1.260(a), if a claim survives a party’s death, the court may order the substitution of the named parties. Further, if an indispensable party to a lawsuit dies, “the action abates until the decedent’s estate or personal representative” has been substituted. The failure to abide by this requirement nullifies subsequent proceedings. Florida courts have consistently found that an estate cannot be a party to the litigation. Instead, the proper party is the personal representative. Moreover, Florida’s Rule of Civil Procedure Statute 1.442, provides that plaintiff must wait at least 90 days after serving the defendant before serving a proposal for settlement.
In this case, the plaintiff initially complied with the rules; however, he made an error when he failed to amend his complaint. The plaintiff’s failure to substitute the decedent’s representative for “John Doe” and serve her with the complaint rendered the settlement proposal invalid. Moreover, the court found that the plaintiff violated the timing requirements. The plaintiff served the representative with the second amended complaint, but did not properly serve her with the first amended complaint. Therefore, the settlement proposal was premature and could not be a basis for an award of attorneys’ fees.
Are You Involved in a Coverage Dispute with your Florida Insurance Company?
If you or someone you love has suffered injuries in a Florida car accident and you are having difficulty recovering damages, contact the attorneys at Friedman Rodman Frank & Estrada, P.A. The attorneys at our law firm have extensive experience successfully resolving personal injury claims on behalf of our clients. We possess the resources, tools, and skills to effectively address any challenges related to dealing with at-fault motorists and their insurance companies. We represent clients in all types of personal injury matters, including those stemming from motor vehicle accidents, defective products, and medical malpractice. Contact our office at 877-448-8585, to schedule a free initial consultation with an attorney at our firm.