United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
C. IRICK UNITED STATES MAGISTRATE JUDGE
cause comes before the Court for consideration without oral
argument on the following motion:
MOTION: MOTION FOR ATTORNEY'S FEES AND COSTS
FILED: February 7, 2019
THEREON it is RECOMMENDED
that the motion be GRANTED in part.
February 15, 2018, Plaintiff filed this action against
Defendant seeking, in part, a declaratory judgment that no
payment is owed under the insurance policy at issue in this
case. Docs. 1; 11. On February 7, 2019, the Court dismissed
this action for lack of subject matter jurisdiction. Doc.
February 7, 2019, Defendant filed a motion for attorney fees
and costs pursuant to Florida Statutes section 627.428 and
Federal Rule of Civil Procedure 54(d). Doc. 103 (the Motion).
On February 21, 2019, Plaintiff filed a response in
opposition to the Motion, arguing that section 627.428 does
not apply in this case because Plaintiff took no
“wrongful action which would warrant the penalty of
awarding attorney's fees and costs to Defendant.”
Doc. 104 (the Response).
March 19, 2019, twenty-six days after Plaintiff filed the
Response, Defendant filed a request for oral argument on the
Motion. Doc. 105. Therein, Defendant stated that he believes
oral argument will aid the Court in ruling on the Motion but
did not specifically explain why oral argument was necessary.
Upon review, the undersigned finds that the Motion does not
involve legal or factual issues that would necessitate oral
argument. Thus, the Motion is now ripe for consideration.
diversity cases, “a party's right to attorney's
fees is determined by reference to state law.”
Prime Ins. Syndicate, Inc. v. Soil Tech Distribs.,
Inc., 270 Fed.Appx. 962, 963 (11th Cir. 2008) (citation
omitted). Florida Statutes section 627.428(1) provides as
Upon the rendition of a judgment or decree by any of the
courts of this state against an insurer and in favor of any
named or omnibus insured or the named beneficiary under a
policy or contract executed by the insurer, the trial court
or, in the event of an appeal in which the insured or
beneficiary prevails, the appellate 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
insured's or beneficiary's attorney prosecuting the
suit in which the recovery is had.
provision applies both when the insured prevails in a suit it
brought against its insurer and when the insured prevails in
a suit brought against it by its insurer.” Prime
Ins. Syndicate, Inc., 270 Fed.Appx. at 963 (citation
omitted). “Because the statute is penal in nature,
courts strictly construe its language. But where a suit fits
within section 627.428, the entry of an award of
attorney's fees is mandatory and
non-discretionary.” Mid-Continent Cas. Co. v. G.R.
Constr. Mgmt., Inc., 2018 WL 2945613, at *2 (M.D. Fla.
May 25, 2018) (citations omitted).
issue before the Court is whether § 627.428(1) applies
when an insurer's case against an insured is dismissed
for lack of federal subject matter jurisdiction. A panel of
the Eleventh Circuit Court of Appeals has determined that it
does. See Prime Ins. Syndicate, Inc., 270 Fed.Appx.
at 963 (finding that a dismissal for lack of subject matter
jurisdiction was sufficient to warrant an award of attorney
fees under section 627.428(1)). And Plaintiff offered no
argument to the contrary. Instead, Plaintiff relies on
Clifton v. United Cas. Ins. Co. of Am. to argue that
Defendant is not entitled to an award of attorney fees
because Plaintiff did not engage in wrongful conduct. 31
So.3d 826, 829 (Fla. 2d DCA 2010). But the Florida Supreme
Court has explicitly disagreed with Clifton
concerning the very issue for which Plaintiff cites that
case. Johnson v. Omega Ins. Co., 200
So.3d 1207, 1218 (Fla. 2016). Specifically, the Florida
Supreme Court has stated as follows: “We therefore
disagree with the hypothetical reasoning in Clifton v.
United Casualty Insurance Co. of America, 31 So.3d 826
(Fla. 2d DCA 2010), and disapprove of the suggestion that
section 627.428 requires a finding of bad faith on the part
of the insurance company.” Thus, the undersigned finds
that Defendant is entitled to attorney fees pursuant to
the undersigned finds that Defendant has not carried his
burden of demonstrating that he is entitled to costs. See
Travelers Indem. Co. of Conn. v. Attorney's Title Ins.
Fund, Inc., 2019 WL 359862 (M.D. Fla. Jan. 14, 2019)
(“The burden of proving entitlement to costs and the
amount of compensable expenses lies with the party seeking to
tax those costs.”) (citations omitted). Defendant
provided the Court with no argument or authority to suggest
that costs are awardable pursuant to section 627.428(1). Nor
did Defendant provide the Court with any argument or
authority to establish that he was a ...