IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

DIRECT GENERAL INSURANCE COMPANY,

Plaintiff,

vs. CASE NO.:4:10-cv-336-SPM

CAROLYN A. GAY, et al.,

Defendants.

____________________________________/

ORDER 

THIS CAUSE comes before the Court on the Defendants’ Motion for

Attorney Fees (doc. 33) and Plaintiff’s Response in Opposition (doc. 34).

In diversity cases, a party’s right to attorney fees is determined by

reference to state law. See All Underwriters v. Weisberg, 222 F.3d 1309, 1311

(11th Cir. 2000). Section 627.428, Florida Statutes, provides:

Upon the rendition of a judgment or decree by any of the courts 

of this state against an insurer and in favor of any named or 

omnibus insured or the named beneficiary under a policy or 

contract executed by the insurer, the trial court or, in the event of

an appeal in which the insured or beneficiary prevails, the appellate 

court shall adjudge or decree against the insurer and in favor of the

insured or beneficiary a reasonable sum as fees or compensation

for the insured's or beneficiary's attorney prosecuting the suit in 

which the recovery is had.

Fla. Stat. § 627.428(1). 

Defendants rely on the unpublished opinion of Prime Insurance

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Syndicate, Inc. v. Soil Tech Distributors, Inc., 270 Fed.Appx. 962 (11th Cir.

2008), in which the Eleventh Circuit affirmed a district court’s award of attorney

fees pursuant to Section 627.428, following dismissal of the declaratory

judgment action for lack of subject matter jurisdiction for failure to satisfy the

amount in controversy requirement. The Court determined that “[u]nder certain

circumstances Florida law permits an award of attorney's fees to the prevailing

party in a dispute between an insurer and its insured[,]” and that Section 627.428

does not require a decision on the merits and may be satisfied where a court has

dismissed the case for lack of subject matter jurisdiction. Id. at 963 (emphasis

added). Notably, in that case, there was no mention of a pending state

proceeding, an important factual distinction from the present case.

Upon review, the Court determines that Prime Insurance “does not mean .

. . that in all cases in which a complaint is dismissed for lack of subject matter

jurisdiction, one party is automatically entitled to fees.” Southern-Owners Ins. Co.

v. Tomac of Florida, Inc., 687 F.Supp.2d 665, 671 (S.D. Tex. 2010) (interpreting

Fla. Stat. § 627.428). “The Court must still engage in a determination of

whether, under the circumstances of this case, Defendant can truly be said to

have ‘prevailed’ such that it qualifies for an award of fees.” Id.

As there is a pending parallel state declaratory judgment proceeding

regarding the controversy at issue in this case, the Court determines that the

determination of whether Defendants are prevailing parties in this dispute is

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premature at this time.

Accordingly, it is hereby ORDERED AND ADJUDGED that Defendants’

Motion for Attorney Fees (doc. 33) is DENIED without prejudice to the filing of an

additional motion for attorney fees subsequent to the resolution of the pending

state declaratory judgment proceeding. 

DONE AND ORDERED this twenty-sixth day of July, 2011.

s/ Stephan P. Mickle 

Stephan P. Mickle

Senior United States District Judge

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