Roberts v. Carter, 350 So. 2d 78 (Fla. 1977). · Go Syfert
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Roberts v. Carter, 350 So. 2d 78 (Fla. 1977). Cases Citing This Book View Copy Cite
106 citation events (31 in the last 25 years) across 10 distinct courts.
Strongest positive: Continental Cas. Co. v. Ryan Inc. Eastern (fla, 2008-01-24) · Strongest negative: Earnest v. Southeastern Fidelity Ins. Co. (fladistctapp, 1981-12-15)
Treatment trajectory · 1977 → 2026 · click a year to view as-of
1977 2001 2026
Top citers, strongest first. 22 distinct citers.
discussed Cited "but see" Earnest v. Southeastern Fidelity Ins. Co. (2×) also: Cited "see, e.g."
Fla. Dist. Ct. App. · 1981 · signal: but cf. · confidence high
Co., 369 So.2d 410 (Fla. 3d DCA 1979) (insurer responsible for attorney's fees of resident spouse of named insured); Smith v. Conlon, 355 So.2d 859 (Fla. 3d DCA 1978) (insurer liable for attorney's fees of individual unrelated to named insured, on jury finding that he used car of named insured with permission); but cf. Roberts v. Carter, 350 So.2d 78 (Fla. 1977) (adverse party's insurer not liable for attorney's fees of injured plaintiff/third-party beneficiary where coverage was denied and insurer ultimately held responsible).
examined Cited as authority (rule) Continental Cas. Co. v. Ryan Inc. Eastern (8×) also: Cited "see"
Fla. · 2008 · confidence medium
Roberts v. Carter, 350 So.2d 78, 79 (Fla.1977).
discussed Cited as authority (rule) Allstate Ins. Co. v. Regar (2×) also: Cited "see, e.g."
Fla. Dist. Ct. App. · 2006 · confidence medium
Allstate's argument is based on this excerpt from Roberts : "[A]n award of attorney's fees under Section 627.428(1) is available only to the contracting insured, the insured's estate, specifically named policy beneficiaries, and third parties who claim policy coverage by assignment from the insured." Id. at 79 (footnotes omitted).
discussed Cited as authority (rule) Goldman v. Campbell
Fla. Dist. Ct. App. · 2006 · confidence medium
Only two years after Sunbeam, the court relied on it in Roberts v. Carter, 350 So.2d 78, 78-79 (Fla.1977) ("The fundamental rule in Florida has been that an `award of attorneys' fees is in derogation of the common law and that statutes allowing for the award of such fees should be strictly construed.'").
cited Cited as authority (rule) Pepper's Steel & Alloys, Inc. v. United States
Fla. · 2003 · confidence medium
Roberts v. Carter, 350 So.2d 78, 78-79 (Fla.1977).
discussed Cited as authority (rule) Fidelity & Deposit Co. v. FIRST STATE INS.
Fla. · 1996 · confidence medium
Fidelity, as Commonwealth's subrogee, will be entitled to attorney's fees should it ultimately prevail in this litigation. § 627.428, Fla. Stat. (1995); Roberts v. Carter, 350 So.2d 78, 79 (Fla.1977); Vermont *270 Mutual Ins.
cited Cited as authority (rule) Thornley v. Sanchez
Haw. App. · 1993 · confidence medium
Roberts v. Carter, 350 So. 2d 78, 78-79 (1977).
discussed Cited as authority (rule) Insurance Co. of North America v. Lexow
11th Cir. · 1991 · confidence medium
“The fundamental rule in Florida has been that an ‘award of attorneys’ fees is in derogation of the common law and that statutes allowing for the award of such fees should be strictly construed.’ ” Roberts v. Carter, 350 So.2d 78, 78-79 (Fla.1977) (quoting Sunbeam Enters., Inc. v. Upthegrove, 316 So.2d 34, 37 (Fla.1975)).
discussed Cited as authority (rule) Insurance Company of North America v. Lexow
11th Cir. · 1991 · confidence medium
Sec. 627.428(1) (1987) (emphasis added). 18 "The fundamental rule in Florida has been that an 'award of attorneys' fees is in derogation of the common law and that statutes allowing for the award of such fees should be strictly construed.' " Roberts v. Carter, 350 So.2d 78, 78-79 (Fla.1977) (quoting Sunbeam Enters., Inc. v. Upthegrove, 316 So.2d 34, 37 (Fla.1975)).
discussed Cited as authority (rule) Associated Elec. & Gas Ins. Servs., Ltd. v. Ranger Ins. Co.
Fla. Dist. Ct. App. · 1990 · confidence medium
Attorney's fees under section 627.428, Florida Statutes (1981), are available "only to the contracting insured, the insured's estate, specifically named policy beneficiaries, and third parties who claim policy coverage by assignment from the insured." Roberts v. Carter, 350 So.2d 78, 79 (Fla. 1977); American Home Assurance Co. v. City of Opa Locka, 368 So.2d 416 (Fla. 3d DCA 1979); American & Foreign Ins.
discussed Cited as authority (rule) Industrial Fire & Cas. Ins. Co. v. Prygrocki
Fla. · 1982 · confidence medium
Having so concluded, we added that "[t]o eliminate any remaining confusion, we ... hold that an award of attorney's fees under Section 627.428(1) is available only to the contracting insured, the insured's estate, specifically named policy beneficiaries, and third parties who claim policy coverage by assignment from the insured." 350 So.2d at 79 (footnotes omitted).
cited Cited as authority (rule) State Farm Mut. Auto. Ins. Co. v. Universal Atlas Cement Co.
Fla. Dist. Ct. App. · 1981 · confidence medium
Roberts v. Carter, 350 So.2d 78, 79 (Fla. 1977).
discussed Cited as authority (rule) Spaulding v. AMERICAN FIRE & INDEM CO
Fla. Dist. Ct. App. · 1981 · confidence medium
Co. v. Avis Rent-A-Car System, Inc., 401 So.2d 855 , 858 n. 7 (Fla. 1st DCA 1981) wherein there was a reference to the supreme court's opinion in Roberts v. Carter, 350 So.2d 78 (Fla. 1977): "While the [ Roberts ] court did not define `contracting insured', the clear, unambiguous language of the statute speaks of `an insured.' It seems obvious that the court intended that a `contracting insured' is `an insured' as defined in the particular contract of insurance." In Roberts the claimant was seeking recovery of attorneys' fees against the tortfeasor's insurer, and the court, denying relief, sai…
discussed Cited as authority (rule) General Acc. Fire & Life v. American Cas. Co.
Fla. Dist. Ct. App. · 1980 · confidence medium
Section 627.428(1), Florida Statutes (1973), permits an award of attorneys' fees only to "the contracting insured, the insured's estate, specifically named policy beneficiaries, in third parties who claim policy coverage by assignment from the insured." Roberts v. Carter, 350 So.2d 78, 79 (Fla. 1977).
discussed Cited as authority (rule) American Home Assur. Co. v. City of Opa Locka
Fla. Dist. Ct. App. · 1979 · confidence medium
Furthermore, although Opa Locka was a nominal party plaintiff, the judgment in this case clearly inured entirely to the benefit of Travelers which was not entitled to fees under the holding in Roberts v. Carter, 350 So.2d 78, 79 (Fla. 1977): "... that an award of attorney's fees under Section 627.428(1) is available only to the contracting insured, the insured's estate, specifically named policy beneficiaries, and third parties who claim policy coverage by assignment from the insured." [6] Central Mutual Ins.
discussed Cited "see" Adrian Fridman v. Safeco Insurance Company of Illinois (2×)
Fla. · 2016 · signal: see · confidence high
See Roberts v. Carter, 350 So. 2d 78, 79 (Fla. 1977). - 11 - damages to which the insured was exposed, including an excess judgment.
cited Cited "see" Consolidated Ins. Services v. Freeman
Fla. Dist. Ct. App. · 2003 · signal: see · confidence high
See Roberts v. Carter, 350 So.2d 78, 79 (Fla.1977).
discussed Cited "see" Superior Ins. Co. v. Libert (2×)
Fla. Dist. Ct. App. · 2001 · signal: see · confidence high
See Roberts v. Carter, 350 So.2d 78 , 79 Fla. (1977) (emphasis added).
cited Cited "see" Florida Life Ins. Co. v. Fickes
Fla. Dist. Ct. App. · 1993 · signal: see · confidence high
See Roberts v. Carter, 350 So.2d 78 (Fla. 1977); Sheridan v. Greenberg, 391 So.2d 234 (Fla. 3d DCA 1980).
cited Cited "see" ARKWRIGHT-BOSTON MFRS., ETC. v. Dunkel
Fla. Dist. Ct. App. · 1978 · signal: see · confidence high
See Roberts v. Carter, 350 So.2d 78 (Fla. 1977) and Wilder v. Wright, 278 So.2d 1 (Fla. 1973).
cited Cited "see, e.g." Westchester Fire Insurance Co. v. Bruno (In re Mona Lisa at Celebration, LLC)
Bankr. M.D. Fla. · 2013 · signal: see, e.g. · confidence low
See, e.g., Roberts v. Carter, 350 So.2d 78 (Fla.1977) (holding that a third-party beneficiary under an insurance contract is not entitled to an award of fees under the statute).
discussed Cited "see, e.g." Magnetic Imaging Systems, I, Ltd. v. Prudential Prop. & Cas. Ins. Co.
Fla. Dist. Ct. App. · 2003 · signal: see also · confidence medium
Co. v. Libert, 776 So.2d 360, 365-66 (Fla. 5th DCA 2001)(finding that an assignee of an insured's PIP benefits was entitled to attorney's fees under section 627.428(1), where the insurer paid the benefits after suit was filed); see also Roberts v. Carter, 350 So.2d 78, 79 (Fla.1977)(noting that attorney's fees are available under section 627.428(1) to assignees of an insured).
Claude Lowell ROBERTS and State Farm Fire and Casualty Company, Petitioners,
v.
Glenn C. CARTER and Martha D. Carter, His Wife, Respondents.
48016.
Supreme Court of Florida.
Sep 15, 1977.
350 So. 2d 78
England.
Cited by 69 opinions  |  Published

Janis M. Halker of Gurney, Gurney & Handley, Orlando, for petitioners.

Charles A. Tabscott of Troutman & Parrish, Winter Park, for respondents.

ENGLAND, Justice.

Claude Roberts and the carrier of his homeowners' insurance policy, State Farm Fire and Casualty Co., have asked us to review the rejection of their defense of assumption of risk in a personal injury lawsuit, and an award of attorney's fees against State Farm for its denial of coverage. We granted certiorari to resolve decisional conflicts among Florida appellate decisions on these points.[1] The first point was recently resolved against Roberts and State Farm by our decision in Blackburn v. Dorta, 348 So.2d 287 (Fla. 1977). We, therefore, limit our discussion to the attorney's fees question.[2]

In a decision reported at 316 So.2d 640, the Fourth District Court of Appeal held that Roberts' insurer must pay the injured plaintiffs' attorney's fees because, in plaintiffs' suit against Roberts and State Farm, the company denied coverage and ultimately was held responsible. Several appellate decisions have considered the same or related questions under Section 627.428(1), Fla. Statutes (1975), which authorizes attorney's fees against insurers in certain circumstances. The statute provides:

"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 recover is had." (Emphasis added).

The narrow question presented here is whether or to what extent persons other than "an insured or the named beneficiary under a policy" may recover attorney's fees in their stead.

The fundamental rule in Florida has been that an "award of attorneys' fees is in derogation of the common law and that statutes allowing for the award of such fees[*79] should be strictly construed". Sunbeam Enterprises, Inc. v. Upthegrove, 316 So.2d 34, 37 (Fla. 1975). The decisional law has generally been consistent in applying this principle, holding that attorney's fees are allowable under the statute only when the narrow statutory class — the insured or a named beneficiary — is required to litigate a valid claim against an insurer. Wilder v. Wright, 278 So.2d 1 (Fla. 1973); Daleo v. Travelers Indemnity Co., 282 So.2d 169 (Fla. 1973).[3] Recovery of fees has generally been denied when other persons have litigated the issue of insurance coverage on their own behalf, such as in the injured "third party beneficiary" cases made possible by Shingleton v. Bussey, 223 So.2d 713 (Fla. 1969).[4]

"The purpose of the statute is to discourage contesting of valid claims of insureds against insurance companies ... and to reimburse successful insureds reasonably for their outlays for attorney's fees when they are compelled to defend or to sue to enforce their contracts... ."[5]

This case is factually identical to Wilder and Daleo in all material respects. The district court erred in allowing attorney's fees, and its reliance on Queen v. Travelers Insurance Co., 258 So.2d 35 (Fla. 3d DCA), cert. denied, 263 So.2d 829 (Fla. 1972), was misplaced. The rationale of Queen, in any event, has been rejected by our decisions in Wilder and Daleo, as was noted in Phoenix Insurance Co. v. Helton, 298 So.2d 177 (Fla. 1st DCA 1974), cert. discharged, 330 So.2d 724 (Fla. 1976).

To eliminate any remaining confusion, we now reaffirm Wilder and hold that an award of attorney's fees under Section 627.428(1) is available only to the contracting insured,[6] the insured's estate, specifically named policy beneficiaries, and third parties who claim policy coverage by assignment from the insured.[7]

The decision of the Fourth District Court of Appeal as to attorney's fees is quashed and the case is remanded for disposition in accordance with this opinion.

It is so ordered.

OVERTON, C.J., and SUNDBERG and HATCHETT, JJ., concur.

ADKINS, J., dissents.

1 Art. V, § 3(b)(3), Fla. Const.
2 Other alleged trial errors raised by appellants were fully considered on appeal by the district court and do not warrant re-evaluation here.
3 See also Manufacturers Life Ins. Co. v. Cave, 295 So.2d 103 (Fla. 1974), holding that attorney's fees are not allowable where the insurer does not deny liability and has been sued by a named beneficiary before it has had a reasonable opportunity to determine the validity of the named beneficiary's claim.
4 See Central Nat'l Ins. Co. v. Gonzalez, 295 So.2d 694 (Fla. 3d DCA 1974). We disapprove, however, that portion of the decision which affirmed an award of attorney's fees on the ground that coverage was an issue. See n. 6 below.
5 Wilder v. Wright, 269 So.2d 434, 436 (Fla. 2d DCA 1972), quoted with approval on affirmance, 278 So.2d at 3.
6 Fees would be available, of course, whether the contracting insured brings or is required to defend a lawsuit with the insurance carrier. See Old Republic Ins. Co. v. Monsees, 188 So.2d 893 (Fla. 4th DCA 1966). James Furniture Mfg. Co. v. Maryland Cas. Co., 114 So.2d 722 (Fla. 3d DCA 1959), suggests the type of suit which an insured might be required to defend. The corporate insured in that case was allowed to recover attorney's fees in a declaration suit brought by the carrier against its insured to contest coverage. The full decision in that case, however, is no longer good law. The decision was geared to an award for policy "beneficiaries", since the attorney's fee statute then in existence did not extend coverage to an "insured". To the extent that James Furniture construes "beneficiary" to encompass an award to an injured tort claimant or an employee of the contracting insured, the decision is disapproved. Similarly, we disapprove Johnson v. Atlantic Nat'l Ins. Co., 163 So.2d 340 (Fla. 3d DCA 1964), cert. denied, 188 So.2d 314 (Fla. 1966), which applied James Furniture to sustain a fees award for an injured tort claimant on the theory that the claimant was a policy "beneficiary". Aetna Cas. & Sur. Co. v. Mills, 192 So.2d 59 (Fla. 3d DCA 1966), illustrates a situation where the current statute would authorize attorney's fees, despite the reliance there on the James Furniture and Johnson decisions. See also Dawson v. Aetna Cas. & Sur. Co., 233 So.2d 860 (Fla. 3d DCA 1970).
7 See, for example, All Ways Reliable Bldg. Maintenance, Inc. v. Moore, 261 So.2d 131 (Fla. 1972); Travelers Ins. Co. v. Tallahassee Bank & Trust Co., 133 So.2d 463 (Fla. 1st DCA 1961), cert. denied, 138 So.2d 332 (Fla. 1962).