An Insurer Acting as an Asignee Was Entitled to Collect Attorneys Fees From Second Insurer

Indiana Lumbermens Mut. Ins. Co. v. Penn. Lumbermens Mut. Ins. Co. (4th DCA 2013)

This case concerned a fee dispute between two insurance carriers: Indiana Lumbermens Mutual Insurance Company (“ILM”) and Pennsylvania Lumbermens Mutual Insurance Company (“PLM”). Both provided CGL policies to a subcontractor that was named in a third-party complaint, but only ILM provided a defense. ILM settled the claim and received an assignment of the insured’s rights against PLM for its failure to defend and indemnify. ILM then sued PLM for breach of contract, declaratory relief, and equitable/contractual subrogation. The trial court entered summary judgment for ILM, awarding it compensatory damages and prejudgment interest. The court, however, denied ILM’s request for fees under section 627.428. On appeal, the fourth district reversed: “The fact that an insurer is the party seeking attorney’s fees under section 627.428 does not, by itself, preclude recovery. … As an assignee of the subcontractor’s claim, ILM fell within the class entitled to recover fees under the statute. To enforce its assigned rights, ILM had to file suit against PLM, and obtain a favorable judgment. This is all that section 627.428 requires.”