Westfield Ins. Co. v. Mendolera

647 So. 2d 223, 1994 Fla. App. LEXIS 9306, 1994 WL 523421

• Court: District Court of Appeal of Florida
• Decided: September 28, 1994
• Docket: 94-01038
• Status: Published

Opinion

647 So.2d 223 (1994)

WESTFIELD INSURANCE COMPANY, Appellant,
v.
Joseph MENDOLERA, Appellee.

No. 94-01038.

District Court of Appeal of Florida, Second District.

September 28, 1994.

Eric P. Gibbs of Zimmerman, Shuffield, Kiser & Sutcliffe, P.A., Orlando, for appellant.

Fred S. Pflaum, Sarasota, for appellee.

ORDER ON MOTION FOR ATTORNEY'S FEES FILED BY APPELLEE, JOSEPH A. MENDOLERA

PER CURIAM.

In accordance with section 768.79, Florida Statutes (1993), Joseph Mendolera, the plaintiff in the lower court, served a pretrial demand for judgment in the amount of $100,000.00, which Westfield Insurance Company refused. The jury returned a verdict in favor of Mendolera, awarding total damages of $500,000.00 and the trial court entered judgment for this amount. The court also awarded Mendolera his attorney's fees and costs because the judgment was "at least 25 percent greater than the offer." § 768.79(1), Fla. Stat. (1993).

Westfield appealed the judgment, which we affirmed, per curiam, in Westfield Ins. Co. v. Mendolera, 647 So.2d 223 (Fla. 2d DCA 1994). We now align ourselves with the First, Fourth and Fifth District Courts of Appeal in granting Mendolera's motion for appellate attorney's fees and costs based on section 768.79. See Mark C. Arnold Const. Co. v. National Lumber Brokers, Inc., 642 So.2d 576 (Fla. 1st DCA 1994); Schmidt v. Forner, 629 So.2d 1036, 1043 n. 10 (Fla. 4th DCA 1993); Williams v. Brochu, 578 So.2d 491, 495 (Fla. 5th DCA 1991). We remand to the trial court to determine the appropriate amount of the award.

RYDER, A.C.J., SCHOONOVER and FULMER, JJ., concur.