Northern District of Florida Denies Attorney’s Fees for Premature Suit

By Douglas M. Cohen

In Hoskins v. Kinsale Ins. Co., 2023 U.S. Dist. LEXIS 179635, U.S. Dist. LEXIS 179635 (N.D. Fla. September 8, 2023), the Court held that the Defendant’s payment of an appraisal award after suit was prematurely filed did not amount to a confession of judgment that entitled Plaintiff to an award of attorney’s fees.

This homeowner’s insurance dispute was resolved through the appraisal process, after the Defendant made an initial payment on the claim and the Plaintiff submitted a competing sworn proof of loss. Nine days after submitting its sworn proof of loss, Plaintiff filed suit in state court. After removal, the Defendant successfully moved to compel appraisal. The appraisal process culminated in an appraisal award more than the Defendant’s estimate but substantially less than the amount claimed by Plaintiff. The Defendant timely paid the appraisal award. Ultimately, the parties filed competing Motions- Defendant to Dismiss and Plaintiff for Attorney’s Fees.

The Court held that an award of attorney’s fees is not appropriate if the insurer was taking steps to resolve the dispute without court intervention.  In this case, the Defendant made an initial payment on the claim a week after receiving notice, and promptly considered the proof of loss and public adjuster’s estimate after receiving it. However, the Plaintiff short circuited the claims adjusting process by racing to the courthouse to file suit, nine days after submission of the proof of loss and a request by Plaintiff to respond 14 days later. (The Court also found that Defendant was not in breach of the policy because a loss was not payable under the policy until 60 days after the proof of loss is received.) The Court held that under these circumstances, where Plaintiff prematurely filed suit, the Defendant’s timely payment of the appraisal award did not amount to a confession of judgment entitling Plaintiffs to an award of attorney’s fees and denied the Plaintiff’s motion.