Florida/Georgia Personal Injury & Workers Compensation

...the type of action sought to be prevented by the enactment of section 627.428. On appeal, the First District Court of Appeal agreed that Nichols was entitled to attorney's fees and costs under section 627.428. The district court found, however, that section 744.357, Florida Statutes (1995), limited any such fees to the face amount of the bond because that section specifically provides that "[n]o surety for a guardian shall be charged beyond the property of the ward." Attorney Fees and Costs unde...

...Fidelity & Deposit Co., 597 So.2d 248 (Fla.1992) (need not look to section 627.428 when another statute exists to govern award of attorney's fees). We disapprove Dealers to the extent it holds that section 627.428 does not apply to sureties. The Effect of Section 744.357 Having determined that attorney's fees may be awarded under section 627.428, we must next address whether such attorney's fees are limited by section 744.357 to the amount of the bond. In this regard, we disagree with the district court's conclusion that section 744.357 limits the damages to the face amount of the bond in all cases. As previously stated, section 744.357 provides that "[n]o surety for a guardian shall be charged beyond the property of the ward." Although this provision does appear to limit the amount of recovery from a surety to the face amount of a guardianship bond, this Court has previously recognized an exception to such limitations on recovery....

...pay a claim, we hold as follows: When principals misappropriate guardianship funds or insufficiently discharge their duties, attorney's fees and costs for a claim based solely on this negligence are limited to the face amount of the bond pursuant to section 744.357; however, when the trial court specifically determines that attorney's fees and costs were incurred because a surety failed to act diligently and unreasonably delayed the payment of a claim, such attorney's fees and costs are not protected by section 744.357....

...formance bond. Thus, we conclude that this case is distinguishable from the Nichols decision. In Nichols, this Court found that although attorneys' fees could be awarded against a surety on a guardianship bond under section 627.428, the provision of section 744.357, Florida Statutes (1995), that "[n]o surety for a guardian shall be charged beyond the property of the ward," limits total recovery from a guardianship surety to the face amount of the guardianship bond....

...eys' fees and costs based solely on the negligence of a principal was limited by the amount of the guardianship bond, an award of attorneys' fees and costs incurred because the surety unreasonably delayed the payment of a claim was "not protected by section 744.357." Id. We, therefore, held that awards of attorneys' fees in such cases were limited by the mandate of section 744.357 unless the fees claimant establishes that the surety failed to act diligently and unreasonably delayed the payment of a claim. Id. Even though the question certified to this Court addresses a performance bond to which section 744.357 does not apply, Intercargo urges that the logic of Nichols should be applied here. The Nichols decision, however, rests entirely on section 744.357's limit to total recovery under guardianship bonds....

...However, the recent Nichols opinion indicates otherwise. Nichols concluded that section 627.428, Florida Statutes (1995), [2] regarding attorneys' fees and costs, does apply to actions against sureties of guardianship bonds. See 704 So.2d at 1373-74. Nichols also concluded that section 744.357, Florida Statutes (1995), [3] does not preclude an award of attorneys' fees and costs beyond the penal sum of the guardianship bond where the attorneys' fees and costs were incurred as a result of the surety's misconduct, rather than that of the principal....

...s, 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 recovery is had. [3] Section 744.357, Florida Statutes (1995) provides: "No surety for a guardian shall be charged beyond the property of the ward."

bond under section 627.428, the provision of section 744.357, Florida Statutes (1995), that “[n]o surety

not exceed the penal sum of the bond, citing section 744.357, Florida Statutes (1993). We affirm in part