Going to Hell in a Hand-Basket?

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1 21st Annual Southern Surety & Fidelity Claims Conference Florida Auto Dealer Bonds and Excessive Attorneys Fee Claims Gregory P. Brown & Paige A. Greenlee Hill Ward Henderson Beth Jenks Capitol Indemnity Corporation

2 The Bond Florida Statutes (10)(a) Annually, before any license shall be issued to a motor vehicle dealer, the applicant-dealer of new or used motor vehicles shall deliver to the department a good and sufficient surety bond or irrevocable letter of credit, executed by the applicant-dealer as principal, in the sum of $25,000. Florida Statutes (10)(b) Violations by auto dealer of any provision in Chapter 319 or 320 allows aggrieved consumer to make claim on bond.

3 Traps for Unwary Surety Modest bond amount ($25,000) Apparent cap on liability The aggregate liability of the surety in any one year shall in no event exceed the sum of the bond. See (10)(b). Expectation of defense by principal Expectation of compliance with claims process and cooperation from bond claimant

4 Rise of the Cottage Industry Florida Auto Dealer Bonds Plaintiff s Consumer lawyers Large Attorneys fee claims Unsavory tactics

5 Basis for Fee Award Not (10) Silent on fees, but contains cap on all liability Courts are using this silence to find that the cap does not include attorneys fees (1) is the basis on which plaintiffs lawyers rely 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. (emphasis supplied).

6 Tactic #1: No Proof of Loss I never submit a proof of loss to the surety because the sureties never respond to them. Plaintiffs lawyers simply file suit Often use minor damage claim to get into court to generate large fee claim Surety kept in dark about specific amount of damages and whether claim is covered

7 Tactic #2: No Meaningful Participation in Litigation Surety often not named as party to underlying suit jointly and severally liable Surety simply receives single notice of suit against principal but nothing else May be defunct principal who won t defend suit Surety prevented from obtaining pertinent information about claim

8 Tactic #3: Surety Named as Supplemental Party After litigating against principal, generating large fee amounts, and ultimately obtaining judgment against principal, surety can expect to be named in a supplemental lawsuit No provision in Florida Rules of Civil Procedure or Florida Statutes specifically allowing such a supplemental suit Rule 1.110(h) ( Subsequent Pleadings ) Florida Statutes ( Proceedings Supplementary ) Courts allow these supplemental suits notwithstanding lack of express authority

9 Jimmy Blau Orlando Attorney Trial Lawyer for Plaintiffs in the Hubbel case Modus Operandi: No Pre-suit proof of claim No opportunity for meaningful discovery Quick to seek sanctions

10 Johnson v. Hakan Finance Corp, et al. Case No.: 07-CA Page Amended Complaint Motion for Sanctions Motion for Class Certification

11

12 Hakes v. Orlando s Auto Specialists, Inc., et. al. Case No. 07-CC-6570 Be careful with tendering defense to principal

13

14 Operation Blot Out Blau Use Florida Supreme Court cases to argue no fee award against auto dealer bond sureties

15 Florida Supreme Court Decisions Three primary cases David Boland, Inc. v. Trans Coastal Roofing Co., 851 So. 2d 724 (Fla. 2003) Hubbel v. Aetna Cas. & Sur. Co., 758 So. 2d 94 (Fla. 2000) Nichols v. Preferred National Ins. Co., 704 So. 2d 1374 (Fla. 1997)

16 Helpful Case for Sureties Hubbel v. Aetna Cas. & Sur. Co., 758 So. 2d 94 (Fla. 2000) [w]e conclude that under the plain language of the statute, attorney s fees are not included under the statutory scheme set forth in (10). Public policy the asserted public policy concerns are not justifiable and would effectively destroy the statutory scheme which establishes a modest fund for consumers to obtain a refund of their monies. As illustrated by the facts in this case, to accept the view of the petitioners would mean the primary beneficiary of the fund would be the attorneys, not the consuming public. The legislative scheme was intended to establish a very modest fund of $25,000 from which consumers could recover damages when car dealers went out of business and defaulted in their obligations.

17 Why Hubbel Didn t Slam Door Shut Plaintiff hadn t claimed fees under Thus, Hubbel addressed only section (10) not the interplay between (1) and (10) Some courts take narrow reading of Hubbel

18 Bad Case for Sureties David Boland v. Trans Coastal Roofing Co., 851 So.2d 724 (Fla. 2003) Construction bond case not auto dealer bond Held surety can be liable for attorneys fees beyond penal sum of bond Plaintiff s lawyers argue penal sum of bond therefore does not cap fees

19 Court s Reasoning in Boland Holding based on express absence of statutory provision limiting surety s liability to penal sum. The plain language of [section ] fails to address the effect, if any, of penal sums under bonds and is silent regarding whether proof of independent misconduct is necessary for an award to exceed such penal sums. Thus, if a limit exists to the amount that may be awarded under this statute, it must be found within another statute. We find no other statute that limits the attorneys' fees liability of sureties under a performance bond. But, unlike construction bond, Section (10)(b) does provide such a cap for auto dealer bonds that was absent in Boland.

20 Middle Ground Case for Sureties Nichols v. Preferred National Ins. Co., 704 So.2d 1374 (Fla. 1997) Guardianship bond case Held attorneys fees may be awarded only to extent of liability cap contained in guardianship statute. Fla. Stat [n]o surety for a guardian shall be charged beyond the property of the ward.

21 Summary of Florida Supreme Court Sureties must argue: Case Law Hubbel controls, especially given public policy reasons Analogous to Nichols (provided there s no finding of unreasonable delay) Boland not controlling because of specific cap in (10)(b)

22 Howell v. Dolphin Automotive, Inc. (Defendant) and Capitol Indemnity Corp. (Supplemental Defendant) Broward County, Case # Plaintiff s Lawyer: Jerard C. Heller

23 Timeline 07/28/03: Howell sues Dolphin 09/01/05: Heller sends letter to surety informing surety that suit is presently on the Court s trial docket, so if you wish to defend this action, you should do so immediately This is the first notice Surety ever received 09/12/05: surety sends letter to Howell asking for submission of Proof of Loss claim so that surety can proceed with its investigation No Proof of Loss claim ever submitted

24 Timeline 05/15/06: Trial occurs; jury enters verdict in favor of Howell 02/07/07: Final Judgment entered in favor of Howell against Dolphin, 82% of which is for attorneys fees 02/12/07: Heller sends letter to surety demanding that Final Judgment be satisfied, including $30,000 in attorneys fees

25 Timeline 06/28/07: Heller files Supplemental Complaint for breach of contract and fraud 01/07/08: surety receives notice of service of process 08/28/08: Judge enters Order granting Motion to Quash Service of Process and Dismiss Supplemental Complaint

26 Timeline 06/24/09: (Very next record action- almost 10 months after Order entered); Heller files Second Amended Supplemental Complaint 08/27/09: Court enters Order denying surety s MTD 2nd Am. Comp. 09/30/09: Heller files Motion for Judgment on Pleadings and/or Summary Judgment

27 Timeline 11/23/09: Court grants SJ on breach of K count but denies on fraud count Court refuses to hold surety liable for fees from underlying suit against principal in amount of $30,800 01/09/10: Surety pays Howell $8,764.59

28 Can the Excessive Fee Claims be Stopped? Pre-Litigation Considerations Secure sufficient collateral in underwriting process General Indemnity Agreement may be insufficient Indemnitor may not pay, forcing surety to sue to recover Indemnitor may not have any $ to pay or otherwise satisfy judgment.

29 Pre-Litigation Considerations Do NOT ignore notice of pending claim or suit against principal Notice serves as basis to impose joint & several liability on surety once judgment obtained against principal Consider notice to be suit against surety itself Take immediate steps to ascertain coverage If claim is covered tender payment and obtain broad release, including against attorneys fees

30 Intervention Chance to defend on merits Ability to engage in early discovery Deposition Duces Tecum Interrogatories aimed at exact amount of damages and basis for claim. Documentation of efforts taken so can t be said to have unreasonably delayed claim Better chance that claimant will have to cooperate with traditional claims process

31 Interpleader Option if multiple claims on bond Determine if sum of claims will exceed total amount of bond Deposit funds into registry of Court Eliminate fee claim

32 Additional Litigation Arguments Surety not liable for attorneys fees incurred in underlying action to which surety not a party But still liable for damages portion of judgment requires judgment to be against insurer in underlying suit judgment only against principal

33 Requires a Pre-suit Claim Plaintiff cannot recover any fees at all if merely files suit without making pre-suit claim on bond [t]he purpose of section is to penalize a carrier for wrongfully causing its insured to resort to litigation to resolve a conflict when it was reasonably within the carrier s power to do so. Government Employees Ins. Co. v. Battaglia, 503 So. 2d 358, 360 (Fla. 5th DCA 1987) (emphasis supplied)

34 Requires a Pre-suit Claim Ins. Co. of N. Am. v. Lexow, 602 So. 2d 528, 531 (Fla. 1992) (providing that Florida courts have consistently held that the purpose of section and its predecessor is to discourage the contesting of valid claims against insurance companies and to reimburse successful insureds for their attorney s fees when they are compelled to defend or sue to enforce their insurance contracts ) (emphasis supplied). Surety should not be subject to punitive nature of statute where no pre-suit claim made because surety s actions have not forced plaintiff into litigation

35 Required to Exhaust Administrative Remedy Section 320 suggests that a claim must first be made to DMV When the [D]epartment determines that a person has incurred a loss as a result of a violation of chapter 319 or this chapter, it shall notify the person in writing of the existence of the bond or letter of credit (10)(b). Complaint form on DMV s website

36 Lobbying Efforts Amend Statute to clarify either no attorneys fees or absolute cap on attorneys fees Public policy reasons Modest fund Ultimately hurts consumers Increased premium costs Fewer sureties willing to issue Windfall to attorneys

37 This presentation is made available by Hill Ward Henderson for educational purposes only to provide you general information and a general understanding of the law, it is not intended to provide nor does it constitute legal advice. The presentation should not be used as a substitute for specific legal advice from a licensed professional attorney. Further, the subject matter contained in this presentation is complex and subject to change. Any tax statements in this material are not intended to suggest the avoidance of U.S. federal, state or local tax penalties.

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