Background
Howard Mathews sued Daymon Bell for injuries arising from an automobile collision. Bell was insured by Progressive Select Insurance Company under a policy providing bodily-injury liability coverage of $100,000 per person and $300,000 per accident. Before suit, Progressive tendered the $100,000 per-person limit, but Mathews rejected the tender.
After filing suit, Mathews served Bell with a $160,000 proposal for settlement. Bell did not accept it, and a jury returned a verdict for Mathews. The circuit court entered a final judgment against Bell after applying a setoff for Progressive’s policy-limits payment, followed by a separate judgment for attorney’s fees and costs based on the unaccepted proposal. After Mathews died, Donna Hurst, as personal representative of his estate, sought to join Progressive to that judgment under section 627.4136(4), Florida Statutes. Progressive paid the taxable costs, leaving only the attorney’s-fee portion in dispute.
A general magistrate recommended granting joinder, but the circuit court sustained Progressive’s exceptions and denied the Estate’s amended joinder motion. The Estate appealed.
The Court’s Holding
The Second District affirmed, holding that Progressive’s policy did not cover the attorney’s-fee judgment assessed against Bell. The policy’s Additional Payments section obligated Progressive to pay expenses it incurred in settling claims or defending insureds but expressly stated that those expenses did not include attorney’s fees awarded or assessed against an insured person.
The court rejected the Estate’s argument that a separate provision covering “reasonable expenses, including loss of earnings up to $200 per day, incurred at our request” supplied coverage. Read in context with the policy’s cooperation provisions, that language concerned expenses an insured personally incurs while assisting the defense, such as attending a deposition, hearing, or trial. It could not reasonably be read to restore coverage for the adverse attorney’s-fee liability expressly addressed elsewhere in the same section.
The court distinguished Government Employees Insurance v. Macedo and Prime Property & Casualty Insurance v. O Mendoza Trucking, Inc. because those decisions involved materially different policy language and structure. Because Progressive’s policy unambiguously did not cover the fee judgment, section 627.4136(4) provided no basis to join Progressive to it.
Key Takeaways
- An additional-payments provision expressly withholding coverage for attorney’s fees awarded or assessed against an insured controlled over a more general provision covering reasonable expenses incurred at the insurer’s request.
- Expenses incurred at Progressive’s request referred to cooperation-related expenses borne by the insured, not an opposing party’s statutory attorney’s-fee award.
- Decisions interpreting materially different insurance-policy language do not themselves make a policy ambiguous.
- Because the policy did not cover the attorney’s-fee judgment, Florida’s insurer-joinder statute did not permit Progressive to be added to that judgment.
Why It Matters
The decision emphasizes that coverage for attorney’s fees imposed through Florida’s proposal-for-settlement procedure depends on the language and structure of the particular insurance policy. A broadly worded expense provision cannot be isolated from an express provision addressing the same category of fees.
For insurers and coverage counsel, the opinion distinguishes policies that leave adverse fee coverage unresolved from policies that expressly address it. For judgment creditors, it confirms that section 627.4136(4) does not create coverage and cannot support joinder when the policy itself does not cover the judgment at issue.