insurance-company-of-north-america-counterdefendant-appellant-cross-v , 980 F.2d 704 ( 1993 )

980 F.2d 704

INSURANCE COMPANY OF NORTH AMERICA, Plaintiff,
Counterdefendant-Appellant, Cross Appellee,
v.
Clausson P. LEXOW, United Storage Systems, Inc. d/b/a The
Extra Closet of Ocala, Ltd., Defendants,
Counterclaim-Appellees, Cross Appellants.

No. 90-3331.

United States Court of Appeals,
Eleventh Circuit.

Jan. 6, 1993.

Robert Paul Keeley, Ellis, Spencer, Butler & Kisslan, Hollywood, Fla., for appellant.

Charles M. Johnston, Taylor, Day & Rio, Jacksonville, Fla., for appellees.

Appeals from the United States District Court for the Middle District of Florida; Wm. Terrell Hodges, Judge.

Before KRAVITCH and BIRCH, Circuit Judges, and DYER, Senior Circuit Judge.

PER CURIAM:

1

This case arose from disputes between the insured and the insurer following the destruction of the insured's business premises by fire.1 Our partial disposition of the case included certification of the following attorney's fee question to the Supreme Court of Florida:

2

DOES THE PHRASE "UNDER A POLICY OR CONTRACT" IN FLORIDA STATUTES, § 627.428(1) INCLUDE SUBSEQUENT LITIGATION TO DETERMINE WHETHER THE INSURED OR THE SUBROGATED INSURER IS ENTITLED TO FUNDS RECOVERED BY THE INSURED FROM A TORTFEASOR AFTER THE INSURER HAS PAID THE INSURED ITS POLICY LIMITS, ALTHOUGH THESE FUNDS ARE INSUFFICIENT TO COMPENSATE THE INSURED'S LOSS, FOR THE PURPOSE OF AWARDING ATTORNEY'S FEES TO THE INSURED ACQUIRING A JUDGMENT AGAINST THE INSURER FOR THE FUNDS RECEIVED FROM THE TORTFEASOR?

3

Insurance Co. of N. Am. v. Lexow, 937 F.2d 569, 574 (11th Cir.1991). The Florida Supreme Court has answered the question certified by this court in the affirmative.2 Insurance Co. of N. Am. v. Lexow, 602 So. 2d 528, 531 (Fla.1992).

4

Accordingly, the district court's denial of the insured Lexow's motion for attorney's fees is REVERSED. This case is REMANDED to the district court with instructions to reconsider Lexow's motion for attorney's fees in view of the Florida Supreme Court's resolution of this issue.

1

A thorough explanation of the facts of this case, the district court's rulings, and the appellate issues involved are found in our previous opinion. Insurance Co. of N. Am. v. Lexow, 937 F.2d 569 (11th Cir.1991)

2

We are grateful to the Supreme Court of Florida for accepting this certification and guiding us on this attorney's fee issue governed by Florida law