Property Casualty Focus

In Hurst v. Daymon Bell &  Progressive Select Insurance Co., Florida’s Second District Court of Appeal affirmed a trial court ruling that a policyholder’s estate could not add a tortfeasor’s liability insurer to a post-judgment attorneys’ fee award stemming from an unaccepted proposal for settlement.

Howard Mathews had sued Daymon Bell for injuries from an automobile collision. Bell was insured under a Progressive auto liability policy with limits of $100,000 per person and $300,000 per accident. Progressive tendered the $100,000 limit before suit was filed, but Mathews rejected the tender. Mathews later served a $160,000 proposal for settlement that was not accepted. The case went to trial in March 2021, the jury returned a verdict for Mathews, and the trial court entered final judgment against Bell after a setoff for Progressive’s bodily injury payment. Donna Hurst, as personal representative of the estate of Mathews, was subsequently substituted as the plaintiff following Mathews’ death in 2023.

Before the appeal, the trial court had entered a separate attorneys’ fee and cost judgment against Bell based on the unaccepted proposal for settlement, and the estate moved under Florida Statutes section 627.4136(4) to join Progressive, as Bell’s insurer, to that judgment. A general magistrate recommended granting the estate’s motion, but the circuit court instead granted Progressive’s exceptions and denied joinder.

The estate appealed the circuit court’s order denying joinder. Although the trial court’s judgment included both attorneys’ fees and taxable costs, Progressive voluntarily paid the taxable costs portion during the joinder proceedings, so the dispute on appeal concerned only the attorneys’ fee portion of the judgment.

The court permitted Progressive to participate as an appellee even though it was not formally joined below, reasoning that the estate sought relief directly against Progressive, Progressive had participated on the joinder issue and filed the exceptions producing the order under review, and due process favored letting Progressive defend an order whose reversal would impose liability on it.

The appellate court reviewed Bell’s insurance policy de novo and noted that policies are construed according to their plain language and enforced as written when unambiguous. The appellate court also noted that courts must read policies as a whole, giving effect to all provisions rather than isolating clauses, and further noted that while ambiguous provisions are construed in favor of coverage, that rule applies only once the court determines the policy is genuinely susceptible to more than one reasonable interpretation.

At issue was the policy’s “additional payments” provision, which stated at paragraph 1 that Progressive agreed to pay “all expenses we incur in the settlement of any claim or in the defense of an insured person in any lawsuit” and expressly excluded “attorney fees awarded or assessed against an insured person.” The estate relied on paragraph 5 of the “additional payments” provision, which separately covered “reasonable expenses, including loss of earnings up to $200 per day, incurred at our request.”

The appellate court observed that the attorneys’ fee judgment the estate sought to collect is, in ordinary terms, an award of fees assessed against Progressive’s insured Bell — precisely the category that paragraph 1 excludes — and that paragraph 5’s more general “reasonable expenses” language cannot be read to silently restore coverage for those excluded fees, applying the principle that a specific provision controls over a general one addressing the same subject. While acknowledging that “including” is ordinarily a term of enlargement, the appellate court found the example following it (“loss of earnings up to $200 per day”) pointed to ordinary personal expenses incurred participating in the defense, not to an adverse fee award, and that reading it otherwise would improperly allow paragraph 5 to swallow paragraph 1.

The court distinguished the estate’s principal authorities. First, Government Employees Insurance v. Macedo involved a policy that, unlike Progressive’s, contained no provision expressly disclaiming coverage for attorneys’ fees, leaving it ambiguous whether the terms “expenses” and “costs” included such fees, Progressive’s policy, on the other hand, expressly answers the question that Macedo left open. Next, the Middle District of Florida’s opinion in Prime Property & Casualty Insurance v. O Mendoza Trucking Inc. was distinguishable because that policy’s fee exclusion appeared only in a separate court costs subparagraph rather than in the general expenses provision, as in Progressive’s policy. The court also rejected the notion that differing judicial interpretations of non-identical policy language render the subject policy ambiguous, citing authority that a lack of judicial consensus does not itself create ambiguity.

The court’s interpretation that the “additional payments” provision did not cover the attorneys’ fee judgment was reinforced by the policy provisions requiring the insured to cooperate with Progressive. The court also rejected the argument that the fee exclusion’s placement in paragraph 1 rather than a global exclusion created ambiguity. Instead, the court framed the relevant question as whether the policy, read as a whole, reasonably allows paragraph 5 to cover what paragraph 1 expressly excludes.

Because Progressive’s policy was read as not covering the attorneys’ fee portion of the judgment, section 627.4136(4) supplied no basis to join Progressive. The appellate court agreed with the circuit court’s granting of Progressive’s exceptions and denial of joinder and affirmed.