DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

FLORIDA INSURANCE GUARANTY ASSOCIATION,

Appellant,

v.

ADAM RUBIN,

Appellee.

No. 4D18-3147

[January 29, 2020]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Meenu Sasser, Judge; L.T. Case No. 

502010CA026921XXXMB.

Hinda Klein of Conroy Simberg, Hollywood, for appellant.

Jonathan Mann and Robin Bresky of Law Offices of Robin Bresky, Boca 

Raton, and Brian C. Duran of The Law Office of Brian C. Duran, P.A., Boca 

Raton, for appellee.

PHILLIPS, CAROL-LISA, Associate Judge.

Appellant, Florida Insurance Guaranty Association, Inc. (“FIGA”), 

appeals the circuit court’s entry of final judgment for prevailing party 

attorney’s fees and costs awarded in favor of Appellee, Adam Rubin 

(“Rubin”). FIGA contends that the circuit court erred in finding that Rubin 

was entitled to recover his attorneys’ fees under section 631.70, Florida 

Statutes (2010), because FIGA never denied Rubin’s claim by affirmative 

action before he filed suit. We agree and reverse.

Rubin timely filed a claim with Coral Insurance Company (“Coral”) after 

sustaining property damage from Hurricane Wilma on October 24, 2005. 

Coral’s independent adjuster inspected Rubin’s property and determined 

he had incurred approximately $5,962.47 in property damage. After 

Rubin paid the deductible and Coral subtracted depreciation, Coral issued 

payment for the remaining $240.16 in property damages on November 15, 

2005.
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On July 26, 2010, Coral was declared insolvent and FIGA, by statute, 

was deemed to have taken its place. At the time that FIGA acquired Coral’s 

rights, duties, and obligations, Rubin did not have any pending claims 

against Coral. However, in 2010, after completing public adjuster classes,

Rubin began to question the value of Coral’s assessment of his property. 

In October 2010, Rubin hired Property Damage Consultants, LLC (“PDC”) 

to inspect his property and evaluate the damage. Rubin also retained an 

attorney to ensure compliance under the statute of limitations. PDC 

estimated Rubin’s property sustained at least $112,231.88 in hurricane 

damages.

On October 22, 2010, nearly five years after Coral adjusted and paid 

his claim, Rubin filed a breach of contract and declaratory judgment action 

against FIGA as Coral’s successor. Rubin first notified FIGA of this 

supplemental insurance claim on December 2, 2010, after suit was filed, 

with a Sworn Statement in Proof of Loss and a public adjuster’s estimate 

seeking the additional purported damages. FIGA moved to stay the 

proceedings under section 631.67, Florida Statutes (2010), in order to 

investigate Rubin’s five-year-old claim. The parties later prepared an 

agreed order in which FIGA’s motion to stay would be denied and its 

answer would be filed within twenty days. After moving for an extension, 

FIGA filed its answer in which it denied the material claim allegations in 

Rubin’s complaint and raised five affirmative defenses. Specifically, FIGA 

asserted that Rubin could not recover because he filed suit prior to full 

compliance with the terms and conditions under Coral’s policy.

In June of 2015, the circuit court heard arguments on the parties’ 

cross-motions for summary judgment. Finding that Rubin complied with 

his obligations under Coral’s policy, the circuit court granted Rubin’s 

summary judgment motion and denied FIGA’s summary judgment motion. 

On October 15, 2015, following pre-trial mediation, the parties reached an 

indemnity settlement wherein FIGA agreed to pay Rubin $49,900 on his 

claim. In accordance with the settlement agreement, the circuit court 

entered a final judgment in Rubin’s favor on the matter of entitlement to 

attorney’s fees and costs on September 25, 2018. This appeal followed.

Appellate courts review a trial court’s interpretation of sections 631.70 

and 627.428, Florida Statutes (2010), de novo. See Rahabi v. Fla. Ins. 

Guar. Ass’n, 71 So. 3d 241, 243 (Fla. 4th DCA 2011) (citing Fla. Ins. Guar. 

Ass’n v. Smothers, 65 So. 3d 541, 542 (Fla. 4th DCA 2011)). There is no 

issue with the characterization of Rubin as the prevailing party. Rather, 

the issue before this court is whether the circuit court erred in finding 

Rubin was entitled to attorney’s fees under section 631.70, Florida 
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Statutes (2010), if FIGA did not affirmatively deny his claim before filing 

his lawsuit.

Section 631.70, Florida Statutes (2010), limits the scope of section 

627.428, Florida Statutes (2010), and provides that section 627.428 shall 

not be applicable to any claim presented . . . .” § 631.70, Fla. Stat. (2010) 

(emphasis added). Instead, a prevailing party is entitled to recover 

attorney’s fees only “when the association denies by affirmative action, 

other than delay, a covered claim or a portion thereof.” Id. (emphasis 

added). Entitlement to fees is outcome-oriented, existing only “[i]f a 

dispute arises between an insurer and an insured.” Ivey v. Allstate Ins.

Co., 774 So. 2d 679 (Fla. 2000). Rubin argues that FIGA’s answer and 

affirmative defenses amounted to an affirmative denial under the statute.

However, since FIGA was required to assert any affirmative defenses in its 

answer in order to preserve them, doing so did not amount to a denial by 

affirmative action under the statute.

We explained in Florida Insurance Guaranty Association v. Ehrlich, 82 

So. 3d 849, 850 (Fla. 4th DCA 2011), that 

[FIGA’s] filing of an answer and affirmative defenses pursuant 

to a court order did not constitute a “denial” of [the insured’s] 

claim by affirmative action other than delay. [FIGA] was 

compelled to answer the complaint by the trial court; [FIGA] 

did not voluntarily deny the claim. Rather [FIGA] simply 

asserted its legitimate defenses under the policy. Essentially, 

[FIGA] “delayed” paying the claim until it had sufficient time 

to investigate. At no time did [FIGA] explicitly deny the claim 

itself.

Id. In the instant case, after seeking a stay of the proceedings, FIGA 

responded to Rubin’s complaint pursuant to an agreed order, in which the 

parties agreed FIGA would respond within 20 days. Only then did it file 

an answer in which it raised affirmative defenses in order to preserve them, 

having had insufficient time to investigate the claim. Doing so could not 

be considered a voluntary denial of Rubin’s claim, but a delay, allowing 

FIGA to investigate further.

Relying on Ivey, Rubin also argues that, by paying his claim after he

filed suit but before the court entered its judgment, FIGA essentially 

confessed judgment, entitling Rubin to attorney’s fees. 774 So. 2d at 684. 

In Ivey, however, the insured filed suit only after she provided the insurer 

with timely notice of her claim, performed all other conditions precedent 

for recovery and the insurer still refused to pay her claim. Id. at 681; see 
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also Rahabi v. Fla. Ins. Guar. Ass’n., Inc., 71 So. 3d 241, 242 (Fla. 4th DCA 

2011). 

In Ivey, we clarified that “[i]t is the incorrect denial of benefits, not the 

presence of some sinister concept of ‘wrongfulness,’ that generates the 

basic entitlement to the fees if such denial is incorrect.” Id. Here, FIGA 

could not have had the opportunity to deny Rubin’s claim because Rubin 

did not notify FIGA about his claim until after he filed suit with the circuit 

court. In fact, as the parties alluded to at oral argument, when FIGA 

attempted to investigate Rubin’s claims, Rubin’s attorneys were 

uncooperative, hindering FIGA’s ability to quickly resolve the claim. 

Accordingly, denial of Rubin’s claims reflected a lack of opportunity to first 

investigate his contentions, rather than a voluntary denial of his claims. 

Thus, there was no dispute and no affirmative denial.

We therefore reverse and remand the case to the circuit court for further 

proceedings consistent with this opinion.

Reversed and Remanded.

LEVINE, C.J., and WARNER, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.