Powell v. Allstate Insurance Co.

479 So. 2d 149, 10 Fla. L. Weekly 2478, 1985 Fla. App. LEXIS 16617

Opinion

PER CURIAM.

Based upon our study of the record and briefs, in light of the oral presentation, we hold as follows:

1. The trial court erred when it failed to enter judgment for David G. Powell against Allstate Insurance Company. We feel that this occurred as a matter of oversight since the judgment in favor of Allstate as to the Powell claim is inconsistent with the explicit oral findings in record and the explicit findings in the judgment.

2. Inasmuch as Powell is the prevailing party, the trial court should have granted Powell’s motion for attorney’s fees pursuant to section 627.428, Florida Statutes (1983).

3. The trial court erred by granting John C. Cockerham attorney’s fees against Allstate Insurance Company. As we view the record and the trial court’s order, Cockerham was but a third party beneficiary under Powell’s Allstate policy. A third party claimant is not within the class of insureds who may recover attorney’s fees pursuant to section 627.428(1), Florida Statutes (1983). Industrial Fire & Casualty Insurance Co. v. Prygrocki, 422 So.2d 314 (Fla.1982).

Affirmed in part; reversed in part; and remanded for further proceedings consistent herewith.

HERSEY, C.J., WALDEN and FLEET, JJ., and LEONARD, Associate Judge, concur.