United States District Court, M.D. Florida, Fort Myers Division
MID-CONTINENT CASUALTY COMPANY, a foreign corporation Plaintiff,
G.R. CONSTRUCTION MANAGEMENT, INC. and DANA M. DICARLO, Defendants. Requested Hours Recommended Reduction Attorney and Rate Remaining Hours Total Requested Hours Recommended Reduction Attorney and Rate Remaining Hours Total Requested Hours Recommended Reduction Attorney and Rate Remaining Hours Total
REPORT AND RECOMMENDATION 
MIRANDO UNITED STATES MAGISTRATE JUDGE
matter comes before the Court upon review of G.R.
Construction Management, Inc.'s Verified Motion for
Attorney's Fees (Doc. 51) filed on November 10, 2017 and G.R.
Construction Management, Inc.'s Supplement to its
Verified Motion for Attorney's Fees (Doc. 52) filed
November 16, 2017. Defendant G.R. Construction Management,
Inc. (GRC) requests attorney's fees and costs in the
amount of $43, 325.00 as the prevailing party under Florida
Statutes section 627.428. Docs. 51, 52. Plaintiff
Mid-Continent Casualty Company (MCC) filed Plaintiff
Mid-Continent Casualty Company's Memorandum of Law in
Opposition to G.R. Construction Management. Inc.'s
Verified Motion for Attorney's Fees (Doc. 55) on December
8, 2017, opposing the request and disputing GRC's
entitlement to attorney's fees. GRC filed a reply (Doc.
58) on December 29, 2017, and a second supplement to the
Motion (Doc. 59) on January 5, 2018. The matter is ripe for
Dana M. Dicarlo, as Trustee of the Dana M. Dicarlo revocable
trust dated February 1, 2006 (Dicarlo), filed suit against
Defendant GRC, among others, in state court on April 23, 2015
(the “Underlying Action”), alleging GRC was
negligent in performing work and supervising subcontractors
performing work on its behalf to remodel Dicarlo's
property. Doc. 30-4. GRC had four separate commercial general
liability policies (collectively “the Policies”)
from MCC that combined covered a four-year span. Docs. 30,
30-1 to 30-3. While defending GRC under a reservation of
rights in the Underlying Action, MCC filed this case seeking
declaratory relief regarding its obligations to indemnify GRC
under the Policies based on certain exclusions, definitions,
and endorsements. Doc. 30.
motions from both GRC (Doc. 36) and Dicarlo (Doc. 37), the
district judge dismissed the case for lack of ripeness
because the Underlying Action was still pending. Doc. 47 at
4-7. The district judge explained: “Because the state
court case is ongoing, MCC is concerned with a potential
future injury that is neither real nor immediate at this
time. If GRC is found not liable then there is no need for
MCC to indemnify it.” Doc. 47 at 4. The Clerk of Court
then entered the Judgment dismissing the case without
prejudice. Doc. 48.
Entitlement to Fees
Parties generally are required to bear their own litigation
expenses regardless of who wins or loses. Fox v.
Vice, 563 U.S. 826, 832 (2011). Exceptions exist,
however, where Congress has authorized courts to deviate from
this rule in certain types of cases by shifting fees from one
party to another. Id. And “in diversity cases
a party's right to attorney's fees is determined by
reference to state law.” Prime Ins. Syndicate, Inc.
v. Soil Tech Distributors, Inc., 270 Fed.Appx. 962, 963
(11th Cir. 2008). Section 627.428(1), Florida Statutes,
provides, in pertinent part:
Upon the rendition of a judgment or decree by any of the
courts of this state against an insurer and in favor of any .
. . insured . . . under a policy or contract executed by the
insurer, the trial court . . . shall adjudge or decree
against the insurer and in favor of the insured or
beneficiary a reasonable sum as fees or compensation for the
. . . attorney prosecuting the suit in which the recovery is
provision applies regardless of which party brought suit.
Prime Ins. Syndicate, 270 Fed.Appx. at 963 (citing
Roberts v. Cater, 350 So.2d 78, 79 n.6 (Fla. 1977)).
It also does not require the insured to prevail on the
merits. Id. at 964. Nor does it require a finding of
coverage or money judgment in favor of the insured.
Rodriguez v. Government Employees Ins. Co., 80 So.3d
1042, 1044-45 (Fla. 4th DCA 2011). Instead, a dismissal of an
insurance company's claim or counterclaim against an
insurer is “the rendition of a judgment” against
an insurer in favor of an insured referenced in section
627.428(1). Dawson v. Aetna Cas. & Sur. Co., 233
So.2d 860, 861 (Fla. 3d DCA 1970).
627.428's purpose “is to discourage the contesting
of valid claims against insurance companies and to reimburse
successful insureds for their attorney's fees when they
are compelled to defend or sue to enforce their insurance
contracts.” Ins. Co. of N. Am. v. Lexow, 602
So.2d 528, 531 (Fla. 1992). It therefore “is a one-way
street offering the potential for attorneys' fees only to
the insured or beneficiary.” Danis Indus. Corp. v.
Ground Improvement Techniques, Inc., 645 So.2d 420, 421
Because the statute is penal in nature, courts strictly
construe its language. Fireman's Fund Ins. Co. v.
Tropical Shipping & Constr. Co., 254 F.3d 987, 1010
(11th Cir. 2001) (citing Great Southwest Fire Ins. Co. v.
DeWitt, 458 So.2d 398, 400 (Fla. 1st DCA 1984)). But
where a suit fits within section 627.428, the entry of an
award of attorney's fees is mandatory and
non-discretionary. Citizens Property Ins. v.
Bascuas, 178 So.3d 902, 904 (Fla. 3d DCA 2015); see
also Lexow, 62 So.2d at 531 (“If the
dispute is within the scope section 627.428 and the insurer
loses, the insurer is always obligated for attorney's
fees.”). In determining the amount of the fee award,
the Court “may take into account the fact that the
insured or beneficiary has not prevailed on all issues and
the degree to which this has extended the litigation or
increased its costs.” Danis Indus. Corp, 645
So.2d at 421.
contends that the district court's Order and subsequent
judgment in its favor entitles it to attorney's fees
under the plain language of section 627.428. MCC responds
that a motion for attorney's fees is premature, arguing
this case is no different than ones in which the courts chose
to stay cases rather than dismiss them. Doc. 55 at 1-2. It
argues it should not be penalized because the district court
chose to dismiss its case. Doc. 55 at 1-2. MCC contends that
awarding attorney's fees in this case where courts have
declined to do so in cases where the actions are stayed would
violate the Equal Protection Clause. Doc. 55 at 2-4. It also
contends that all but one of the cases GRC cites to support
GRC's entitlement to fees are distinguishable. Doc. 55 at
arguments are unavailing. As to equal protection, even if MCC
were attempting to make a genuine equal protection argument,
which it does not appear to be based on its acknowledgement
that such a claim is not properly before the Court and its
failure to fully brief the issue, the basis of the claim in
incorrect: that entitlement to attorney's fees depends on
whether a court decides to stay or to dismiss a case. The
fact that a resolution on the merits of an insurer's
claim will be made later or in another forum does not
eliminate entitlement to fees under section 627.428. In
Travelers Home and Marine Insurance Company v.
Calhoun, 2014 WL 1328968 (M.D. Fla. April 2, 2014), the
district court dismissed the action on abstention grounds,
and the defendant was entitled to fees having succeeded on a
motion to dismiss, regardless of whether it met the
prevailing party standard, or there had not yet been a
determination that the insurer acted in bad faith.
Id. at *6-7; see also Nat'l Union
Fire Ins. Co. of Pittsburgh, PA v. F. Vicino Drywall II,
Inc., No. 10-60273-CV, 2011 WL 13214289, at *2-3 (S.D.
Fla. Aug. 22, 2011), report and recommendation
adopted, No. 10-60273-CV, 2011 WL 13214290 (S.D. Fla.
Sept. 13, 2011) (rejecting argument that fee issue was
premature where the district court dismissed the case for
failing to present a “case or controversy”).
contrast, in Founders Insurance v. Cortes-Garcia,
No. 8:10-cv-02286-T-17AEP, 2013 WL 461731 (M.D. Fla. Feb. 7,
2013), the district court had entered partial summary
judgment as to the duty to defend but had not yet resolved
the duty to indemnify when the insured moved for
attorney's fees. Even though the claims were severable,
the court denied the motion for fees as premature, because
that same court would have had to rule on a second motion for
fees if it later entered judgment as to the duty to
indemnify. Id. at *7. The court explained,
“[I]t appears that while technically a judgment has
been entered in the case and can be the basis for an insured
to recover fees under the statute, that if an appeal is
pending or other issues remain unresolved, the proper
procedure is to deny the motion for fees and costs pending a
final resolution in the case.” Id. In Axis
Surplus Ins. Co. v. Contravest Constr. Co., 877
F.Supp.2d 1268 (M.D. Fla. 2012), the district court similarly
ruled the motion for attorney's fees was premature
because the insured sought fees for both its claim on the
duty to defend and the duty to indemnify, even though the
latter claim was unresolved. Id. at 1270-71. If the
court had not deferred ruling, it would have been to avoid
ruling twice, and if the insured lost the indemnity issue, it
would have to reduce the insured's award. Here, MCC will
have to refile if necessary to determine coverage upon
resolution of the Underlying Action. As the court noted in
Founders, there is a distinction between unresolved
issues that will take place in a wholly separate proceeding,
and in that circumstance, attorney's fees should be
decided on the conclusion of the current proceeding.
Founders, 2013 WL 461731, at *9.
also attempts to distinguish Prime Insurance
Syndicate based on the grounds for dismissal-lack of
diversity instead of lack of ripeness. Doc. 55 at 4. Such an
argument is based on a distinction without a difference. In
either case, the insurer's suit will be litigated
again-one in a different time (after resolution of the
underlying action) and the other in a different place (state
court). If the second suit results in liability against the
insurer, it will again be liable for additional
attorney's fees under section 627.428. Similarly, there
is no significant difference in the case of GEICO Gen.
Ins. Co. v. Gould, No. 8:12-CV-1066-T-35TBM, 2014 WL
12617796 (M.D. Fla. Oct. 20, 2014). There, the insurer's
case was dismissed because the insured was an improper party.
Id. at *1-2. Although MCC is correct the insured
will not later become a proper party in that proceeding, it
ignores the critical fact determinative of entitlement to
fees: that the insured “successfully defended [its]
case and ‘obtained ‘total and complete'
recovery through the dismissal of the action.”
Gould, 2014 WL 12617796, at *3. As in
Gould, the insured here was compelled to defend
itself and obtained complete recovery by way of dismissal of
MCC's case. See Id. The purpose of the statute
is to discourage lawsuits in which insureds have to litigate
against their own insurance companies, either prosecuting a
lawsuit to obtain payment under a policy or having to defend
against an unnecessary lawsuit. Here, MCC chose to file a
case before it was ripe for review. There is no reason for
the Court to distinguish this case from cases in which an
insurer chose to file a case in a court that did not have
jurisdiction or against an improper party. Based on section
627.428, as between the insurance company and the insured,
the insurance company should bear the cost of that ultimately
unnecessary suit. Accordingly, the Court recommends finding
GRC is entitled to fees under section 627.428.
Reasonableness of Fees
reasonable attorney fee is calculated by multiplying the
number of hours reasonably expended by the reasonable hourly
rate, Hensley v. Eckerhart, 461 U.S. 424, 433
(1983), and a “reasonable hourly rate” is
“the prevailing market rate in the relevant legal
community for similar services by lawyers of reasonably
comparable skills, experience, and reputation, ”
Norman v. Housing Auth. of Montgomery, 836 F.2d
1292, 1299 (11th Cir. 1988). In determining the reasonable
amount of hours, the Court may conduct an hour-by-hour
analysis or it may reduce the requested hours across the
board. Bivins v. Wrap It Up, Inc., 548 F.3d 1348,
1350 (11th Cir. 2008). The court must exclude hours that were
not reasonably expended and hours that are redundant,
excessive, or otherwise unnecessary. Hensley, 461