NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

IN THE DISTRICT COURT OF APPEAL 

OF FLORIDA 

SECOND DISTRICT 

CHRISTOPHER SHANE MILLER, ) 

 ) 

 Appellant, ) 

 ) 

v. ) Case No. 2D15-1350 

 ) 

FLORIDA INSURANCE GUARANTY ) 

ASSOCIATION, INC.; and STEVEN ) 

SIMMONS, individually, ) 

 ) 

 Appellees. ) 

 ) 

Opinion filed July 15, 2016. 

Appeal from the Circuit Court for 

Hillsborough County; Mark R. Wolfe, Judge. 

Richard N. Asfar, George A. Vaka, and 

Nancy A. Lauten of Vaka Law Group, 

Tampa; and R. Gale Porter, Jr., of Porter 

Law Group, LLC, Tampa, for Appellant. 

G. William Bissett, Jr. of Kubicki Draper, 

P.A., Miami, for Appellee Florida Insurance 

Guaranty Association, Inc. 

No appearance for Appellee Steven 

Simmons. 

VILLANTI, Chief Judge. 

 Christopher Shane Miller appeals the trial court's order denying attorney's 

fees. Because the trial court did not err by denying Miller's motion, we affirm. 
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 Miller held a sinkhole insurance policy issued through First Home 

Insurance Company. When Miller's home was damaged by sinkhole activity in 2009, he 

filed a claim. First Home denied the claim and Miller brought suit to enforce the policy. 

During the litigation, First Home became insolvent and Florida Insurance Guaranty 

Association (FIGA) automatically assumed Miller's policy by operation of law1 in 2012. 

Miller then amended his complaint to add FIGA as a party, and FIGA sought an 

extension of time in order to investigate the claim. The trial court granted FIGA's motion 

but also ordered FIGA to "serve a response to [Miller's] amended complaint." As 

ordered, FIGA subsequently filed an answer containing eight affirmative defenses to the 

amended complaint. Importantly, none of the defenses denied that Miller's claim was 

covered by the policy. Instead, the defenses alleged: (1) Miller's action against FIGA is 

governed by section 631.50, Florida Statutes (2012); (2) Miller is not entitled to be 

unjustly enriched by any payments that would be in addition to payments received from 

another insurer for the same claim; (3) Miller is not entitled to public adjuster fees; 

(4) Miller is not entitled to damages outside the covered claims; (5) FIGA is entitled to a 

reduction for any amounts paid by another insurer; (6) Miller is not entitled to 

prejudgment interest; (7) Miller is not entitled to attorney's fees; and (8) "[Miller's] claim 

is barred, in whole or in part, or must be reduced to the extent [Miller has] failed to 

mitigate, minimize or avoid" the sinkhole damage. 

 Ultimately, Miller filed a motion for summary judgment, but by then FIGA 

completed its investigation, and it accepted coverage of the claim the day before the 

 1See § 631.57(1)(a)(1)(a), Fla. Stat. (2012) (stating that FIGA 

"shall . . . [b]e obligated to the extent of the covered claims existing . . . [p]rior to 

adjudication of insolvency" of a previous insurer). 
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trial court heard the motion. Miller then sought attorney's fees pursuant to section 

631.70, Florida Statutes (2009). Section 631.70 states: 

The provisions of s. 627.428 providing for an attorney’s fee 

shall not be applicable to any claim presented to the 

association under the provisions of this part, except when 

the association denies by affirmative action, other than 

delay, a covered claim or a portion thereof. 

(Emphasis added.) Without expounding, the trial court found that FIGA's actions were a 

denial of Miller's claim "by affirmative action other than delay." But although Miller met 

the threshold requirement for attorney's fees under section 631.70, the trial court ruled 

that Miller's claim for attorney's fees was specifically precluded by language in section 

631.54(3)(c), Florida Statutes (2012), which excludes attorney's fees for sinkhole claims 

from "covered claims": 

(3) "Covered claim" means an unpaid claim, including one 

of unearned premiums, which arises out of, and is within the 

coverage, and not in excess of, the applicable limits of an 

insurance policy to which this part applies, issued by an 

insurer, if such insurer becomes an insolvent insurer and the 

claimant or insured is a resident of this state at the time of 

the insured event or the property from which the claim arises 

is permanently located in this state. For entities other than 

individuals, the residence of a claimant, insured, or 

policyholder is the state in which the entity’s principal place

of business is located at the time of the insured event. The 

term does not include: 

. . . . 

(c) Any amount payable for a sinkhole loss other than 

testing deemed appropriate by the association or payable for 

the actual repair of the loss, except that the association may 

not pay for attorney’s fees or public adjuster's fees in 

connection with a sinkhole loss or pay the policyholder. The 

association may pay for actual repairs to the property but is 

not liable for amounts in excess of policy limits. 
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(Emphasis added.) On this statutory basis, the trial court denied Miller's attorney's fees 

motion. It is from this denial that Miller appeals. 

 Miller raises two arguments on appeal. First, he argues that the trial court 

erred when it found that section 631.54(3)(c) invalidates the attorney's fees provision of 

section 631.70 because the rules of statutory interpretation allow both statutes to exist. 

Second, he argues that the trial court erred in applying the 2012 version of section 

631.54(3)(c) to find that attorney's fees were not allowed because the pre-2011 version 

of section 631.54(3)(c), which does not contain the "sinkhole loss" exclusion under 

"covered claims," applies when the loss occurred in 2009. Because this court has 

already considered the second issue and rejected Miller's position, see Fla. Ins. Guar. 

Ass'n v. de la Fuente, 158 So. 3d 675 (Fla. 2d DCA), review granted, 171 So. 3d 115 

(Fla. 2015), we confine our review to the first issue. 

 While orders on attorney's fees are generally reviewed for an abuse of 

discretion, see Grapski v. City of Alachua, 134 So. 3d 987, 989 (Fla. 1st DCA 2012), the 

issue before us is one of statutory interpretation, to which the de novo standard of 

review applies. See Borden v. E.-European Ins. Co., 921 So. 2d 587, 591 (Fla. 2006). 

 Regarding Miller's argument that the trial court erred when it found that the 

definition of "covered claims" in section 631.54(3)(c) precludes the grant of attorney's 

fees under section 631.70, we initially note that "[t]here exists a presumption that laws 

are passed with knowledge of all prior laws already on the books, as well as a 

presumption that the legislature neither intended to keep contradictory enactments in 

force nor to repeal a prior law without an express intention to do so." Floyd v. Bentley, 

496 So. 2d 862, 863 (Fla. 2d DCA 1986). Accordingly, we must first endeavor to adopt 
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a scheme of statutory construction that reconciles any inconsistencies between sections 

631.70 and 631.54(3)(c) and preserves the force and effect of both. See id. at 864. 

 We find the language of section 631.54(3)(c) that excludes attorney's fees 

from "covered claims" in relation to a sinkhole loss to be reconcilable with the provisions 

of section 631.70. This is so because the structure of section 631.54(3)(c) indicates 

that the legislature intended to exclude from "covered claims" any attorney's fees 

related to: (1) testing for a sinkhole loss, and (2) repair of a sinkhole loss. These 

provisions are both very different from the language of section 631.70 that allows the 

insured to seek attorney's fees related to the enforcement of the policy itself. Further, 

there are indeed other circumstances in which the insured could potentially seek to 

recover attorney's fees under his or her insurance policy and related to the testing for or 

repair of a sinkhole loss. For example, if there was a dispute between the insured and a 

contractor who was making repairs to property damaged by a sinkhole, FIGA should not 

have to pay the attorney's fees associated with securing the contractor's compliance. 

Cf. Petty v. Fla. Ins. Guar. Ass'n, 80 So. 3d 313, 317 (Fla. 2012) (recognizing that an 

insurer might be liable to the insured to pay fees "by an express provision for which the 

party contracted"); Fla. Ins. Guar. Ass'n v. All The Way With Bill Vernay, Inc., 864 So. 

2d 1126, 1129 (Fla. 2d DCA 2003) ("The law is well established that when an insurer 

unjustifiably refuses to defend its insured, the insurer is liable to the insured for the 

reasonable attorney's fees and other expenses incurred in defending the action brought 

by [a] third party as damages for the breach of contract."). These would be fees 

specifically "in connection with a sinkhole loss" from which FIGA would be insulated 

from under 631.54(3)(c)'s exclusion from covered claims, as opposed to fees in 
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connection with the policy itself and FIGA's refusal to honor it. Thus, we find that the 

language in section 631.54(3)(c) that excludes attorney's fees in sinkhole cases from 

"covered claims" does not override section 631.70's language that allows payment of 

attorney's fees when FIGA denies a claim by affirmative act, and further that the trial 

court erred when it found that the two provisions were irreconcilable. 

 Even though our finding dictates that an insured could recover attorney's 

fees from FIGA when FIGA denies a covered sinkhole claim by affirmative action, FIGA 

argues that this court should affirm the trial court's denial of attorney's fees based on the 

"tipsy coachman" doctrine. This doctrine allows an appellate court to affirm when there 

is any basis in the record that would "support an alternate legal argument for affirmance, 

even if this argument was not raised in the lower court." Ray v. State, 40 So. 3d 95, 98 

(Fla. 4th DCA 2010); see also Muhammad v. State, 782 So. 2d 343, 359 (Fla. 2001) 

("[T]he trial court's ruling . . . will be affirmed even if the trial court ruled for the wrong 

reasons, as long as the evidence or an alternative theory supports the ruling."), modified 

on other grounds by Marquardt v. State, 156 So. 3d 464 (Fla. 2015). We now examine 

why, using the tipsy coachman doctrine, the trial court should be affirmed on the proper 

application of section 631.70. 

 Section 631.70 allows the insured to collect attorney's fees from FIGA but 

only "when the association denies by affirmative action, other than delay, a covered 

claim or a portion thereof." Both below and on appeal, Miller points to FIGA's filing of an 

answer to his complaint, and the raising of affirmative defenses therein, as being proof 
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that FIGA denied his claim by affirmative action and not delay.2 To this point, Miller is 

correct in asserting that the filing of an answer with affirmative defenses can amount to 

an affirmative act of denial. See Rahabi v. Fla. Ins. Guar. Ass'n, 71 So. 3d 241, 243 

(Fla. 4th DCA 2011) (finding a denial by affirmative action when FIGA filed an answer to 

the complaint with seven affirmative defenses, including coverage denied). But when 

the answer is filed pursuant to a court order and none of the affirmative defenses 

specifically deny coverage, section 631.70 is not satisfied. See Fla. Ins. Guar. Ass'n v. 

Ehrlich, 82 So. 3d 849, 850 (Fla. 4th DCA 2011) (finding no denial by affirmative action 

when FIGA "was compelled to answer the complaint by the trial court" and the asserted 

affirmative defenses did not "explicitly deny the claim itself"); cf. Rahabi, 71 So. 3d at 

243 ("FIGA's seven affirmative defenses alleged that the insureds' damages 'were not 

caused by a covered loss.' By alleging that the insureds' damages '[were] not caused 

by a covered loss,' FIGA denied the insureds' claim 'by affirmative action.' "). Here, 

FIGA filed its answer only after requesting an extension of time and being ordered by 

the trial court to file a response to the complaint. Under these circumstances, simply 

filing an answer to the complaint is not considered a denial of coverage. See Ehrlich, 

82 So. 3d at 850. 

 Further, none of FIGA's affirmative defenses outright denied Miller's right 

to coverage. While FIGA stated in its eighth affirmative defense that "[Miller's] claim is 

 2In addition to arguing that FIGA denied his claim by affirmative action 

when it filed an answer with eight affirmative defenses, Miller also argues that FIGA 

denied his claim by: (1) ignoring his requests for neutral evaluation, (2) demanding a 

jury trial, (3) propounding discovery, and (4) opposing Miller's motion for summary 

judgment. However, Miller fails to show how any of these are affirmative actions 

equivalent to a denial that would satisfy section 631.70. 
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barred, in whole or in part, or must be reduced to the extent [Miller has] failed to 

mitigate, minimize or avoid the alleged damage," we find that this affirmative defense, at 

most, was an assertion by FIGA that Miller might not be entitled to the full amount of the 

claim based on Miller's improper actions. Such an argument is not equivalent to a 

denial of coverage by affirmative action. See Fla. Ins. Guar. Ass'n v. Smothers, 65 So. 

3d 541, 543 (Fla. 4th DCA 2011) (noting that "a dispute as to the amount to be paid is 

not a denial of coverage"). Our finding is further supported by the fact that Miller filed an 

affidavit on April 10, 2013, almost five months after FIGA filed its answer and affirmative 

defenses, and alleged that "[i]t is [his] understanding that FIGA has neither admitted nor 

denied [his] claim." 

 We must reject Miller's argument that the tipsy coachman doctrine cannot 

be applied here when to do so would be to grant FIGA affirmative relief on appeal 

without it having filed a cross-appeal. Once Miller filed an appeal, absent a need to 

capitulate obvious error, FIGA was required to defend the trial court's ruling on appeal. 

See Title & Trust Co. of Fla. v. Salameh, 407 So. 2d 1035, 1035-36 (Fla. 1st DCA 1981) 

(stating that the appellee's failure to file an answer brief in support of the trial court's 

ruling "places an undue burden on the appellate court," and noting that the alternative is 

for the appellee to "confess error and join appellant in seeking a reversal" (citing Carlin 

v. Carlin, 310 So. 2d 403 (Fla. 4th DCA 1975))). But because FIGA obtained a 

favorable result in the underlying action, albeit for the wrong reason, it was not required 

to appeal the underlying logic supporting that result, nor could it have. Moreover, our 

upholding the trial court's order on appeal does not afford FIGA affirmative relief, as 

Miller claims; it merely decides that, based upon the undisputed facts and controlling 
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authority, a reversal is not permissible. Indeed, Black's Law Dictionary defines 

"affirmative relief" as "[t]he relief sought by [an appellee] by raising a counterclaim or 

cross-claim that could have been maintained independently of the [appellant's] action." 

Black's Law Dictionary 1404 (9th ed. 2009). 

 In our view, this is a common-sense assessment that goes to the essence 

of a tipsy coachman analysis. To avoid this analysis would require us to turn a blind 

eye to the trial court's erroneous assessment of the undisputed facts and their 

application to controlling law. Instead, we find that the undisputed facts show that FIGA 

did not deny Miller's claim by affirmative action, and absent some evidence that FIGA 

denied Miller's claim by affirmative action, Miller is not entitled to attorney's fees under 

section 631.70. Accordingly, there is ample basis in the record to affirm the trial court's 

denial of fees even though it based its denial on two statutory misinterpretations. To 

hold otherwise would essentially allow a trial court to rewrite a statute, by default, and 

ironically, thereby impose a result contrary to its intent. 

 For these reasons, and in accord with the tipsy coachman doctrine, we 

find that there was no reversible error in the trial court's denial of Miller's motion to tax 

attorney's fees. 

 Affirmed. 

SILBERMAN and LUCAS, JJ., Concur.