DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

21ST CENTURY CENTENNIAL INSURANCE COMPANY,

Appellant,

v.

DWAYNE WALKER,

Appellee.

No. 4D17-2937

[August 29, 2018]

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

Beach County; David E. French, Judge; L.T. Case No. 50-2011-CA018093-XXXX-MB.

Rosemary B. Wilder of Marlow, Adler, Abrams, Newman & Lewis, Coral 

Gables, for appellant.

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

Raton, and David W. Bennett of Bodden & Bennett Law Group, Boynton 

Beach, for appellee.

KLINGENSMITH, J.

This case is before us for the second time to consider issues that arose 

following trial. In the first appeal, 21st Century Centennial Insurance 

Company (“Insurer”) appealed the trial court’s final judgment awarding 

Dwayne Walker damages resulting from two separate motor vehicle 

accidents. This court per curiam affirmed the lower court’s judgment, and 

preliminarily granted Walker entitlement to seek appellate attorney’s fees

pursuant to a proposal for settlement. See 21st Century Centennial Ins.

Co. v. Walker, 230 So. 3d 859 (Fla. 4th DCA 2017) (“21st Century I”). 

Insurer now appeals the trial court’s final judgment awarding Walker both 

his trial and appellate attorney’s fees and costs, as well as expert witness 

fees. For the reasons set forth below, we reverse the award of both trial 

and appellate attorney’s fees and costs, and remand for further 

proceedings.

In 21st Century I, Walker sued Insurer seeking damages under an

uninsured motorist (“UM”) insurance policy with a $20,000 limit per 
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accident. His claim was for damages arising out of two separate car 

crashes in 2010 and 2011. Walker later moved to amend his complaint to

add counts for bad faith against Insurer—one count for each car crash.

The trial court denied his motion to amend without prejudice.

Prior to trial, Walker served two separate proposals for settlement on 

Insurer pursuant to section 768.79, Florida Statutes (2017)—one for each 

of the two car crashes—wherein he proposed to settle for $40,000 per 

crash, totaling $80,000. Insurer did not accept the proposals, and the 

case proceeded to a jury trial. The jury ruled in Walker’s favor, awarding 

him $170,598.78 for the 2010 accident and $84,564.83 for the 2011

accident.

The court originally rejected Walker’s request to have the judgment 

entered as determined in the jury verdict, and instead entered final 

judgment against Insurer in the amount of the $20,000 policy limits 

applicable to each crash. Insurer appealed that final judgment. 

While the appeal in 21st Century I was pending, Walker filed a motion 

in the trial court for attorney’s fees and costs and a renewed motion to 

amend his complaint. In that motion, he argued that the amendment to 

add bad faith counts to the complaint was now proper because the final 

judgment had been entered and the underlying claim was resolved. He 

also asked the trial court once again to amend the final judgment to reflect 

the total amount of the jury’s verdict.

After this court relinquished jurisdiction following the 21st Century I

appeal, the trial court granted Walker’s renewed motion to amend his 

complaint to add the bad faith claims. The court relied on Fridman v. 

Safeco Ins. Co. of Ill., 185 So. 3d 1214 (Fla. 2016), and entered an Amended 

Final Judgment in favor of Walker for the full amount of the jury verdict,

but limited execution to the $20,000 UM policy limits. Thereafter, Walker 

filed an amended motion seeking attorney’s fees and costs pursuant to 

section 768.79 and Florida Rule of Civil Procedure 1.442. Although the 

trial court also granted Walker’s motion for attorney’s fees and costs, it did 

not enter a judgment for any amounts. 

Insurer timely appealed the Amended Final Judgment that was per 

curiam affirmed in 21st Century I. Insurer asserted two issues on appeal

in 21st Century I that arose from the trial but did not appeal the order 

granting attorney’s fees and costs because, at that time, the trial court had 

not yet entered an appealable order pertaining to that issue. See Diaz v. 

Citizens Prop. Ins. Co., 227 So. 3d 735, 736 (Fla. 3d DCA 2017) (finding 

that the court did not have jurisdiction to review an award of attorney’s 
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fees where “no amount ha[d] been fixed by the trial court and the part of 

the final judgment that finds entitlement thereto [was] not ripe for . . . 

review.”). However, while 21st Century I was on appeal, Walker filed an 

unopposed motion with this court asking for an award of appellate 

attorney’s fees and costs based on section 768.79. We granted Walker

entitlement to seek those appellate attorney’s fees in the trial court, but

ordered, “On remand, the trial court shall set the amount of the attorney’s 

fees to be awarded for this appellate case.”1

After our remand of the case back to the trial court, the parties agreed 

to the entry of a final judgment awarding attorney’s fees of $200,000 and 

expert witness fees of $6,050 but included language in the judgment 

reserving the parties’ right to appeal Walker’s entitlement to those fees and 

costs.2 This appeal from that final judgment timely followed.

A party’s legal entitlement to attorney’s fees and costs based on the 

interpretation of a statute is reviewed de novo. See Land & Sea Petrol., Inc. 

v. Bus. Specialists, Inc., 53 So. 3d 348, 355 (Fla. 4th DCA 2011). “This 

case presents an issue of statutory interpretation. The construction of a 

statute is an issue of law subject to de novo review.” Aramark Unif. & 

Career Apparel, Inc. v. Easton, 894 So. 2d 20, 23 (Fla. 2004). 

According to section 768.79:

(1) . . . . If a plaintiff files a demand for judgment which is not 

accepted by the defendant within 30 days and the plaintiff 

recovers a judgment in an amount at least 25 percent greater 

than the offer, she or he shall be entitled to recover reasonable 

costs and attorney’s fees incurred from the date of the filing of 

the demand.

. . . .

(6) Upon motion made by the offeror within 30 days after the 

entry of judgment or after voluntary or involuntary dismissal, 

the court shall determine the following: 

. . . .

 

1 Although the order from this court indicated that Walker was entitled to his appellate 

attorney’s fees “unconditionally,” we did not intend to foreclose Insurer from asserting 

any appropriate defenses, including lack of good faith, regarding the application of section 

768.79.

2 The award of attorney’s fees did not differentiate between the amount for appellate fees 

and the amount for trial fees.
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(b) If a plaintiff serves an offer which is not accepted by the 

defendant, and if the judgment obtained by the plaintiff is at 

least 25 percent more than the amount of the offer, the 

plaintiff shall be awarded reasonable costs, including 

investigative expenses, and attorney’s fees, calculated in 

accordance with the guidelines promulgated by the Supreme 

Court, incurred from the date the offer was served. 

(Emphasis added). Section 768.79(6)(b) defines “judgment obtained” as 

used under subsection (6)(b) as “the amount of the net judgment entered, 

plus any postoffer settlement amounts by which the verdict was reduced.” 

§ 768.79(6)(b).

This court has previously held that when assessing whether attorney’s 

fees should be granted under section 768.79, the correct source to which 

a court should look is the judgment, not the jury’s verdict. See White v. 

Steak & Ale of Fla., 816 So. 2d 546, 550 (Fla. 2002); State Farm Mut. Auto. 

Ins. Co. v. Kujawa, 782 So. 2d 1003, 1005 (Fla. 4th DCA 2001).

More recently, the Florida Supreme Court decided Fridman, and 

established the appropriate protocol to follow if a plaintiff prevails in a UM 

action and then elects to pursue a bad faith claim. The Court held that

any judgment entered should be for the full amount of the insured’s 

damages, even though the insured must later proceed with a bad faith 

action to recover any amount in excess of the policy limits. Fridman, 185 

So. 3d at 1230. It stated, “[A]n insured is entitled to a jury determination 

of liability and the full extent of his or her damages, which may be in excess 

of the policy limits, in the underlying UM case, prior to litigating a firstparty bad faith cause of action.” Id. The Court also endorsed the 

“preferable approach” of entering final judgment in these cases for the full 

amount of the verdict, while limiting execution of the judgment to the 

policy amount. Id. at 1229; accord GEICO Gen. Ins. Co. v. Paton, 150 So. 

3d 804, 808 n.1 (Fla. 4th DCA 2014).

The import of the Fridman decision is clear. When a case involves a 

first-party bad faith claim alleging that an insurer is liable for an amount 

in excess of policy limits, the full application of such judgment against the 

insurer—including an award of attorney’s fees and costs based on section 

768.79—should not be considered by the trial court until the bad faith 

litigation is resolved. This is because an insurer is liable for bad faith 

damages for more than its policy limits provided two thresholds are met: 

(1) the plaintiff is awarded damages above the policy amount in the 

underlying tort suit, and (2) a jury determines the plaintiff proved bad faith 
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claims conduct by the insurer. See Fridman, 185 So. 3d at 1216 (noting 

that cases from the Florida Supreme Court have long held that “a 

determination of liability and the full extent of damages is a prerequisite 

to a bad faith cause of action”); Farinas v. Fla. Farm Bureau Gen. Ins. Co., 

850 So. 2d 555, 559 (Fla. 4th DCA 2003) (holding that the determination 

of whether an insurer acted in good faith is to be made by the jury). 

Here, the trial court appropriately stayed execution against the insurer 

of any amount over the policy limits pending resolution of the bad faith 

case consistent with Fridman and Paton. In doing so, the only enforceable 

judgment against the insurer at this time, or what is effectively the “net 

judgment” as section 768.79(6)(b) describes, is for the amount 

representing the policy limits of $20,000 per accident. 

Thus, Fridman compels us to adopt another “preferable approach” in 

the context of first-party bad faith litigation: waiting until a determination 

is made on whether the plaintiff proved bad faith claims against an insurer 

before determining entitlement to an award of attorney’s fees and costs 

against an insurer under section 768.79.

Therefore, we reverse the trial court’s awards of trial and appellate fees 

and costs, and remand for further proceedings to consider an award 

pursuant to section 768.79 at the end of the parties’ bad faith litigation. 

Reversed and remanded for further proceedings.

GROSS and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.