The Florida Supreme Court recently held that an insured could recover attorneys’ fees under section 627.428, Florida Statutes, without having to prove the insurer denied her claim in bad faith. Johnson v. Omega Ins. Co., 200 So. 3d 1207 (Fla. 2016).
The insured submitted a claim to her homeowner’s insurer for damage caused by sinkhole activity. The insurer investigated the claim and initially determined that the damage was not caused by a sinkhole, and thus, was not covered under the policy. The insured filed suit against the insurer. The insurer continued to investigate the claim and subsequently determined that the insured’s damage was caused by sinkhole activity. The insurer filed an answer in the lawsuit admitting that the insured was entitled to benefits under the policy. Based on the insurer’s admissions, the insured moved for confession of judgment and attorneys’ fees under section 627.428. The insurer argued that a finding of bad faith on the part of the insurer was required to award attorneys’ fees under section 627.428. The trial court granted the insured’s motion. The appellate court reversed, holding that a finding of bad faith was a prerequisite for entitlement to attorneys’ fees. The insured appealed.
The Florida Supreme Court reversed, finding that the insured could recover her attorneys’ fees under section 627.428 without being required to prove the insurer denied her claim in bad faith. It explained that merely an incorrect denial, and not a “bad faith” denial, of benefits is all that is required to recover attorneys’ fees. The case was remanded to the trial court to determine the amount of the attorneys’ fee award.