Tower Hill Signature Insurance Company, Appellant/Cross-Appellee,
Cesar Javellana and Sandra Javellana, Appellees/Cross-Appellants.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for Miami-Dade County No. 14-31467,
Michael A. Hanzman, Judge.
Lieberman Straus and Shrewsberry and Ashley R. Kellgren and
Scot E. Samis (St. Petersburg), for appellant/cross-appellee.
Barnard Law Offices and Maxwell S. Barnard and Andrew C.
Barnard, for appellees/cross-appellants.
SALTER, EMAS and LOGUE, JJ.
these consolidated appeals, each party seeks review of an
order denying their respective motions for attorney's
fees. Cesar and Sandra Javellana ("the
Javellanas"), plaintiffs below, appeal the denial of
their motion for attorney's fees and costs pursuant to
section 627.428, Florida Statutes (2016). Tower Hill
Signature Insurance Company ("Tower Hill"),
defendant below, appeals the denial of its motion for
attorney's fees under the offer of judgment statute,
section 768.79, Florida Statutes (2016).
affirm the trial court's denial of the Javellanas'
motion for attorney's fees and costs because there was no
"rendition of a judgment" in favor of the
Javellanas on their claims. However, we reverse the trial
court's denial of Tower Hill's motion for
attorney's fees, because this was a "civil action
for damages" under section 768.79, and the "true
relief" sought by the Javellanas was an award of
Javellanas sustained damage to their home from water
intrusion, and initiated a claim with their homeowner's
insurer, Tower Hill. Tower Hill investigated the claim, which
included an inspection by its independent claims adjuster,
and determined the claim was covered under the policy. Based
on the adjuster's evaluation and estimate, Tower Hill
made an initial payment to the Javellanas in an amount that
Tower Hill characterized as the "actual cash value"
of the loss,  and invited the Javellanas to submit
supplemental claims should they discover additional damage.
Although Tower Hill later made some additional payments,
which the Javellanas accepted, they nevertheless contended
that Tower Hill grossly underpaid the claim,  and therefore,
breached the terms of the insurance policy.
Javellanas sued Tower Hill, and the operative complaint
contained three counts: breach of contract (Count I);
declaratory judgment related to the wear and tear/marring
exclusion in the policy (Count II); and declaratory judgment,
seeking to have the court declare that Tower Hill may not
unilaterally determine actual cash value but that actual cash
value must be determined either as an issue of fact or by
agreement of the insured and insurer (Count III).
the litigation was pending, Tower Hill served an offer of
judgment on each of the plaintiffs, pursuant to section
768.79, Florida Statutes (2016). These offers of judgment
were not accepted by the Javellanas, and the case proceeded
to a jury trial.
the Javellanas rested their case, Tower Hill moved for
directed verdict. Tower Hill argued that the Javellanas
failed, as a matter of law, to prove a breach by Tower Hill,
because the evidence showed that Tower Hill performed its
duties under the policy by paying the amount of the
independent adjuster's repair estimate at actual cash
value and advising the Javellanas to submit supplemental
claims for any additional damage. The court denied the
motion, concluding that it was for the jury to determine, as
an issue of fact related to the breach of contract, whether
or not Tower Hill failed to pay the actual cash value of the
conclusion of the trial, the jury received the verdict form
which asked the following two questions:
1. Did Plaintiffs prove by the greater weight of the evidence
that Tower Hill Signature Insurance Company failed to
initially pay at least the actual cash value, less any
applicable deductible, to Cesar & Sandra Javellana for
damage(s) caused by a ...