To Fee Or Not To Fee, That Is The Question (Part III)

August 19, 2026

An issue that remains contentious is whether the Supplementary Payments provision in a liability policy provides coverage for attorney’s fees that the insured is ordered to pay at the conclusion of litigation.  Recently, the Second District Court of Appeal in Hurst v. Estate of Matthews, 2026 WL 2178891 (Fla. 2d DCA July 29, 2026), addressed this issue.

In Hurst, the personal representative for the Estate of Howard Matthews appealed a post-judgment order in favor of Progressive Select Insurance Company. Mr. Matthews and Progressive’s insured, Mr. Bell, were involved in an automobile collision. Mr. Matthews subsequently filed a lawsuit against Mr. Bell, who had an automobile policy with Progressive that provided $100,000 in bodily injury liability coverage. Before the lawsuit was filed, Progressive tendered the $100,000 policy limits to Mr. Matthews, which he rejected. 

After filing a lawsuit, Mr. Matthews served a proposal for settlement to Mr. Bell in the amount of $160,000, which was not accepted.  Following a trial, a jury returned a verdict in favor of Mr. Matthews. The court entered a final judgment against Mr. Bell and entered a separate attorney’s fee and cost judgment against him for the proposal for settlement that was not accepted. At this time, Mr. Bell passed away. The Estate moved under Florida law to add Progressive to the attorney’s fee and cost judgment.  A general magistrate recommended that the Estate’s motion be granted, but the circuit court granted Progressive’s exceptions and denied joinder of Progressive to the judgment.  The Estate appealed this order to the Second District Court of Appeal.

Progressive’s policy issued to Mr. Bell contained “Additional Payments” provisions which pertinently provided: “In addition to our limit of liability, we will pay for an insured person:”

The court held that this provision expressly identified that the policy did not cover attorney’s fees assessed against Mr. Bell.  The court further held that the language in the “Additional Payments” provisions, “5. reasonable expenses, including loss of earnings up to $200 per day, incurred at our request,” did not provide coverage for the attorney’s fee judgment.  In addition, the court held that paragraph 1. of the “Additional Payments” provisions was not ambiguous.

In 2017, I wrote a blog post discussing Government Employees Insurance Company v. Macedo, 2017 WL 2981812 (Fla. July 13, 2017) (Macedo II), in which the Florida Supreme Court analyzed whether an automobile liability insurance policy provided coverage for attorney’s fees and costs imposed against an insured defended by the insurance carrier.  In this case, the Court held that the other policy provisions providing coverage for costs, along with the index citing legal expenses, created an ambiguity regarding whether coverage for attorney’s fees was included.  As such, the Court held that coverage for such damages existed.

In Hurst, the Estate argued that Macedo controlled and coverage existed for the attorney’s fees judgment.  However, the Second District Court of Appeal distinguished Macedo.  Specifically, the court stated that the policy language in the Macedo case was materially different from the policy language in Progressive’s policy.  Importantly, Geico’s “Additional Payments” provisions in the policy that was the subject of the Macedo case did not contain a provision that expressly barred coverage for attorney’s fees.  The Geico policy also contained language in the “Additional Payments” provisions that Geico would pay “all investigative and legal costs incurred by us” and “all reasonable costs incurred by an insured at our request.”  The Geico policy index also referenced “Legal Expenses and Costs.”

In 2023, I wrote a blog post discussing Prime Property & Casualty Insurance, Inc. v. O Mendoza Trucking, Inc., 2023 WL 2162196 (M.D. Fla. Feb. 22, 2023), in which a jury returned a verdict that triggered attorney’s fees due to the rejection of the proposal for settlement.  Prime Property & Casualty Insurance. Prime filed a declaratory judgment action arguing that no coverage existed for the award of attorney’s fees against the driver of O Mendoza’s auto.  Prime’s policy contained Supplementary Payments provisions stating that the insurer would pay all reasonable expenses incurred by the insured at Prime’s request (subsection (4)).  In addition, the policy contained a specific provision that coverage existed for court costs taxed against the insured, but no coverage existed for any award of attorney’s fees or attorney’s expenses taxed against the insured (subsection (5)). The federal court held that the exclusion for attorney’s fees in subparagraph (5) only applied to coverage provided under that subparagraph, and not coverage provided under subparagraph (4).

The Estate in Hurst also relied on O Mendoza, and the Second District Court of Appeal distinguished this case.  The Second District Court of Appeal held that the attorney’s fee language only appeared in the court costs paragraph in the O Mendoza policy; thus, subparagraph (4) provided coverage for attorney’s fees incurred by the insured, including the attorney’s fee judgment.  In the Hurst case, subparagraph (1) in the Progressive policy is not limited to court costs but addresses all expenses.

Now, three different courts have addressed three policies with different policy language and have come to three different results.  It will be interesting to continue to monitor whether additional courts address this issue and whether they expand or limit a carrier’s obligation to pay attorney’s fees imposed against an insured under a liability policy.

For any further questions, please contact J. Blake Hunter.

Click here to read Part II.

Click here to read Part I.