CITIZENS PROPERTY INSURANCE CORPORATION v. OSVALDO DELGADO

• Court: District Court of Appeal of Florida
• Decided: March 30, 2022
• Docket: 21-0311
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed March 30, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-311 Lower Tribunal No. 19-185 ________________

Citizens Property Insurance Corporation, Appellant,

vs.

Osvaldo Delgado, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Abby Cynamon, Judge.

Traub Lieberman Straus & Shrewsberry LLP, C. Ryan Jones and Scot E. Samis (St. Petersburg), for appellant.

Law Office of Lazaro Vazquez, P.A., and Lazaro Vazquez, for appellee.

Before SCALES, MILLER and GORDO, JJ.

GORDO, J. Citizens United Property Insurance Corporation appeals a final

judgment for attorney’s fees entered in favor of Osvaldo Delgado. We have

jurisdiction. Fla. R. App. P. 9.030(b)(1)(A).

Delgado submitted a claim for property damage caused by Hurricane

Irma to Citizens and was furnished with a partial payment of $4,226.32.

Delgado contested this amount, and Citizens demanded an appraisal

pursuant to the terms of the insurance policy. Delgado subsequently filed

suit, and Citizens moved to compel appraisal. After the appraisers

determined the amount of the loss1, Citizens paid the award without further

ado. Delgado was subsequently awarded attorney’s fees pursuant to section

627.428, Florida Statutes.

Citizens argues the award of attorney’s fees was improper because:

(1) Delgado recovered no judgment against it; and (2) the lawsuit itself was

unnecessary to resolve the claim. It is well settled Florida law that Citizens’

payment of the appraisal award constituted a judgment. Johnson v. Omega

Ins. Co., 200 So. 3d 1207, 1215 (Fla. 2016) (“[I]t is well settled that the

payment of a previously denied claim following the initiation of an action for

recovery, but prior to the issuance of a final judgment, constitutes the

functional equivalent of a confession of judgment.”); Ivey v. Allstate Ins. Co.,

1 The appraisers agreed on an award of $45,021.26.

2 774 So. 2d 679, 684–85 (Fla. 2000) (“[W]here an insurer pays policy

proceeds after suit has been filed but before judgment has been rendered,

the payment of the claim constitutes the functional equivalent of a confession

of judgment or verdict in favor of the insured, thereby entitling the insured to

attorney’s fees.”).

We further find that, as shown by the record in this case, the lawsuit

was a necessary catalyst to effectuate payment of the claim. State Farm

Florida Ins. Co. v. Lime Bay Condo., Inc., 187 So. 3d 932, 935 (Fla. 4th DCA

2016) (“[W]hen an insured moves for attorney’s fees, the underlying issue is

whether the suit was filed for a legitimate purpose, and whether the filing

acted as a necessary catalyst to resolve the dispute and force the insurer to

satisfy its obligations under the insurance contract.”); Lewis v. Universal

Prop. & Cas. Ins. Co., 13 So. 3d 1079, 1082 (Fla. 4th DCA 2009) (“[W]hether

suit is filed before or after the invocation of the appraisal process is not

determinative of the insured’s right to fees; rather, the right to fees turns upon

whether the filing of the suit served a legitimate purpose.”); First Floridian

Auto & Home Ins. Co. v. Myrick, 969 So. 2d 1121, 1124 (Fla. 2d DCA 2007)

(finding the involvement of the judicial system was necessary where the

insurer was asserting a coverage defense).

Affirmed.