General Electric Credit Corp. v. Fidelity & Casualty Co. of New York

344 So. 2d 1284, 1977 Fla. App. LEXIS 15252

• Court: District Court of Appeal of Florida
• Decided: March 18, 1977
• Docket: No. 76-1136
• Status: Published

Opinion

WEAVER, SIDNEY M., Associate Judge.

Appellant filed this timely appeal from an order denying attorney’s fees.

This action was commenced by Spiral Enterprises, Inc. as the insured under a marine hull policy of insurance for the theft and loss of a yacht. Appellant, the “loss payee” under the said policy, thereafter entered the case as a party plaintiff and final judgment was entered in favor of the plaintiffs. Attorney’s fees and costs were awarded to Spiral but denied as to the appellant.

Appellant seeks the comfort of Section 627.428(1), Florida Statutes (1975), in his quest for attorney’s fees. The said Statute provides as follows:

“Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of an 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.”

A careful reading of the Statute indicates that the appellant does not come within the provisions thereof. A “loss payee” is not an insured or a beneficiary under our construction of the Statute but rather a designated payee-derivative from rights asserted by the named insured, Spiral Enterprises, Inc.

AFFIRMED.

MAGER, C. J., and DAUKSCH, J., concur.