Skip to Content

Florida Supreme Court Rules Statutory Attorney’s Fees Not Recoverable Against FIGA Unless Expressly Provided in Insurance Contract

January 19, 2012

Petty v. Florida Ins. Guar. Ass’n, 2012 WL 143605 (Fla. Jan. 19, 2012).


The insured’s home was damaged during Hurricane Charley in August 2004. Florida Preferred Property Insurance Company issued partial payment for the loss and the insured filed suit to compel appraisal. The parties participated in appraisal and Florida Preferred issued an additional payment. After issuing payment on the appraisal award, Florida Preferred became insolvent and the insured substituted Florida Insurance Guaranty Association (“FIGA”) as the defendant in the suit. The only remaining issue was whether FIGA was required to pay the insured’s attorney’s fees incurred in the litigation with Florida Preferred.

The trial court found that FIGA was obligated to pay the insured’s attorney’s fees.

The Second DCA reversed the award of attorney’s fees holding that the insured’s claim for fees under Florida Statutes §627.428 was not a covered claim under the Florida Insurance Guaranty Association Act (the “Act”). The Second District certified conflict with the Third DCA’s decision in Florida Ins. Guar. Ass’n v. Soto, 979 So. 2d 964 (Fla. 3d DCA 2008).

Critical Issues

The Florida Supreme Court considered whether FIGA is required to pay attorney fee awards under the provisions of Florida Statutes §627.428.


The Court’s decision clarifies FIGA’s responsibilities for paying claims following the adjudication of insolvency of an insurer. The Court emphasized that FIGA’s responsibilities are set forth in the Act. FIGA is obligated to pay covered claims existing prior to the underlying insurer’s adjudication of insolvency. Section 631.54(3), Florida Statutes (2008) defines “covered claim” as a claim that arises out of and is within the coverage of the insurance policy. Section 627.428 imposes a general obligation on insurers to pay a fee award when an insurer has wrongfully contested an insured’s valid claim. FIGA, however, is not obligated to pay section 627.428 attorney’s fees unless the insurance policy in question expressly provides coverage for section 627.428 fee awards. 

Impact of Decision

This decision is only applicable to FIGA; solvent insurers may still be liable under section 627.428 for an insured’s attorney’s fees upon the rendition of a judgment in favor of an insured.