Florida law generally provides that insurers must pay judgments within thirty (30) to sixty (60) days in property cases, depending upon the type of insurance at issue and whether or not an appeal was pursued or dismissed.1 However, an issue has arisen as to the meaning of property insurance policy language which states in effect “we will pay for covered loss or damage: [when we receive a sworn proof of loss and] . . . [t]here is an entry of a final judgment . . .” Insurers have argued that this payment language only applies after appeals on the final judgment have been exhausted. Insureds, meanwhile, have asserted that the language is effectively a waiver of the procedural right to stay execution of the final judgment pending appeal by the posting of a supersedeas bond.2
While the interpretation of the language within a policy of insurance is treated as the interpretation of a contract, the interpretation of “final judgment” has more than one meaning and is therefore ambiguous.3 The Supreme Court of Florida has defined “final judgment” different ways in different contexts.4
For example, in determining that the statute of limitations on a claim for attorney malpractice does not begin to run until “the final judgment becomes final,” the Supreme Court of Florida explained that “a judgment becomes final either upon the expiration of the time for filing an appeal or post-judgment motions, or, if an appeal is taken, upon the appeal being affirmed and either the expiration of the time for filing motions for rehearing or a denial of the motions for rehearing.”5 However, in determining whether a party could appeal an order awarding attorney’s fees and costs entered after a voluntary dismissal, the Supreme Court of Florida stated that “[a] final judgment is one which ends the litigation between the parties and disposes of all issues involved such that no further action by the court will be necessary.”6 The Supreme Court in Caufield focused upon the trial court completing its judicial labor in holding that the order was final and appealable.7
What is clear is that neither of these decisions by the Supreme Court of Florida conclusively determines, as a matter of Florida law, the meaning and effect of the phrase “entry of a final judgment” as used in a policy of insurance.8 In March, the Eleventh Circuit Court of Appeals in Atlanta certified the question “Does language in an insurance policy mandating payment of benefits upon “entry of a final judgment” require an insurer to pay its insured upon entry of judgment at the trial level?”9
To date, we do not have an answer of the question from the Florida Supreme Court, and the stakes are very high. If the Florida Supreme Court determines that payment must be made within thirty (30) days of the trial court’s final judgment, based upon policy language, policies will need to be amended to preserve the insurer’s right to appellate review. However, if the Florida Supreme Court determines that payment must be made within thirty (30) days of the trial court’s final judgment based upon the Florida statute, it will be a tremendous blow to the insurance industry and their right to appellate meaningful appellate review after payment has already been made to the insured prior to the briefing of the appeal. Another option would be simply for the Florida Supreme Court to apply Silverstrone language, which would preserve meaningful appellate review for insurers. Until the Florida Supreme Court speaks to the issue, this question will remain hotly contested.
1 See e.g., § 631.051(12), Fla. Stat.
2 Chalfonte Condominium Apartment Assoc. v. QBE Insurance Corp., 561 F.3d 1267, 1274 (11th Cir. 2009).
5 Silverstrone v. Edell, 721 So.2d 1173, 1175 & n.2 (Fla. 1998).
6 Caufield v. Cantele, 837 So.2d 371, 375 (Fla. 2002).
8 Chalfonte Condo, 561 F.3d at 1274.
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