Continental Casualty Co. v. Ryan Inc. Eastern

This Court has for review Ryan Inc. Eastern v. Continental Casualty Co., 910 So.2d 298 (Fla. 2d DCA 2005), in which the Second District Court of Appeal certified conflict with Western World Insurance Co., Inc. v. Travelers Indemnity Co., 358 So.2d 602 (Fla. 1st DCA 1978). The conflict issue is whether a surety that pays money on behalf of its principal and is subrogated to any rights the principal has against its own insurer under principles of equitable subrogation is entitled to recover its attorney’s fees under section 627.428, Florida Statutes (2006), for prevailing in a coverage dispute against the principal’s insurer. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We conclude that a surety that has no written assignment from the insured and is not a named or omnibus insured or named beneficiary under the policy is not entitled to attorney’s fees under section 627.428. Accordingly, we quash the Second District’s decision in Continental, which granted a motion for fees by the surety, and approve the First District’s decision in Western World, which denied a similar request for fees.

FACTS AND PROCEDURAL HISTORY

In November 2000, Ryan Incorporated Eastern (Ryan), as contractor, entered into a contract with 951 Land Holdings, Ltd. (951 Land Holdings), as owner of the property, to construct a golf course in Collier County. This contract required Ryan to obtain commercial general liability (“CGL”) insurance. Ryan obtained two separate CGL policies. The primary insurance policy was issued by Continental Casualty Company (Continental) and the excess policy was issued by Lumbermens Mutual Casualty Company (Lumbermens). In December 2000, Ryan, as the principal, and Hartford Fire Insurance Company (Hartford), as the surety, executed performance and payment bonds to 951 Land Holdings, which were subject to an August 1994 General Indemnity Agreement (GIA) between Ryan and Hartford.

After completion of the golf course, 951 Land Holdings sued Ryan and Hartford for damages resulting from contaminated grass supplied by Ryan’s subcontractor. The case proceeded to mediation, after which Hartford paid approximately $4.7 million in claims, fees and expenses to settle the dispute. Subsequently, Ryan and Hartford instituted a declaratory judgment action against Continental and Lum-bermens for failing to defend and indemnify Ryan and Hartford for the damages paid in the lawsuit brought by 951 Land Holdings. Ryan and Hartford filed a joint motion for summary judgment. Continental and Lumbermens each filed cross-motions for summary judgment. The trial court granted summary judgment in favor of Continental and Lumbermens, concluding that there was no insurance coverage under the CGL policies based on the faulty workmanship of the subcontractor. Ryan and Hartford appealed the decision on coverage and filed a motion for appellate attorney’s fees under section 627.428.

On appeal, the Second District Court of Appeal reversed the final summary judgment in favor of Continental and Lumber-mens on the underlying coverage issue and “[remanded] this case to the circuit court for further proceedings on the authority, of J.S.U.B., Inc. v. United States Fire Insurance Co., 906 So.2d 308 (Fla. 2d DCA 2005).” Continental, 910 So.2d at 299. As to appellate attorney’s fees, the court granted Ryan and Hartford’s motion “conditioned upon the ultimate entry of judgment in favor of the Contractor and the Surety on remand.” Id. at 301. The Second District determined that when a surety such as Hartford makes payment for its principal, “the surety becomes subrogated to the rights and remedies of its principal.” Id. at 300. Because of its payment, the Second District reasoned that the surety “stands in the shoes of the Contractor as a first party claimant under the CGL policies” and is equally entitled to an award of fees under section 627.428. Id. at 301.

The Second District further elaborated on public policy considerations. Specifically, the court explained that because the GIA between Ryan and Hartford required Ryan to reimburse Hartford for any fees associated with the enforcement of the bond, a denial of fees to Hartford would make Ryan liable for those fees with no possibility of reimbursement from the insurers. See id. Because this result would contradict the purpose of section 627.428— to discourage the contesting of valid claims by insurance companies — and would “exalt[ ] form over substance,” as the principal could have carried the ball in the litigation and been entitled to the same fees, the court conditionally granted Hartford’s motion. See id.

In reaching this decision, the Second District certified conflict with Western World. In Western World, the surety and its principal sued the liability insurer for its failure to defend the principal and sought reimbursement for the money the surety paid on the bond. See 358 So.2d at 603. Similar to the Second District in Continental, the First District held that when a surety pays a judgment for the principal, the surety may be indemnified from the principal and is subrogated to any rights the principal has against its insurance carrier. See id. at 604. However, on nearly identical facts, the First District concluded that the surety was not entitled to its appellate fees because it was neither a named insured nor named beneficiary under the liability policy. See id. We accepted jurisdiction to resolve this conflict.

ANALYSIS

A. Overview of Section 627.428

This case requires us to review section 627.428, Florida Statutes (2006). Because this issue involves the interpretation of a statute, our review is de novo. Brass & Singer, P.A. v. United Auto. Ins. Co., 944 So.2d 252, 253 (Fla.2006). Section 627.428, a provision of the Florida Insurance Code, was originally enacted in 1959, see ch. 59-205, § 477, Laws of Fla., and has been the subject of extensive interpretation by both Florida and federal courts. See, e.g., Fireman’s Fund Ins. Co. v. Tropical Shipping & Constr. Co., 254 F.3d 987 (11th Cir.2001); Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So.2d 1216 (Fla.2006); Brass & Singer, 944 So.2d at 253-54; David Boland, Inc. v. Trans Coastal Roofing Co., 851 So.2d 724 (Fla.2003); Roberts v. Carter, 350 So.2d 78 (Fla.1977). Although the section authorizes an award of attorney’s fees, it does so only in a discrete set of circumstances. The statute provides in pertinent part that

[u]pon 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.

§ 627.428(1), Fla. Stat.

As with any case of statutory construction, we begin with the “actual language used in the statute.” Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla.2006). This is because legislative intent is determined primarily from the text. See Maggio v. Fla. Dept. of Labor & Employment Sec., 899 So.2d 1074, 1076-77 (Fla.2005). The plain language of section 627.428 provides for an award of attorney’s fees to a “named or omnibus insured or the named beneficiary ” who obtains a judgment or decree against an insurer. § 627.428, Fla. Stat. (emphasis supplied).

A “named insured” is one who is “designated as an insured” under the liability policy. Romero v. Progressive Southeastern Ins. Co., 629 So.2d 286, 288 (Fla. 3d DCA 1993). An “omnibus insured” is one who is covered by a provision in the policy but not specifically named or designated. See Industrial Fire & Cas. Ins. Co. v. Prygrocki, 422 So.2d 314, 315 (Fla.1982) (holding that a pedestrian was an omnibus insured under a liability policy providing coverage for medical and other expenses incurred as a result of bodily injuries sustained by “a pedestrian, through being struck by the insured motor vehicle”); State Farm Fire & Cas. Co. v. Kambara, 667 So.2d 831, 831-32 (Fla. 4th DCA 1996) (holding that a resident was an omnibus insured under a landlord’s liability policy that provided coverage for “bodily injury caused by an accident on your premises you own or rent”). Additionally, the rights of an “omnibus insured” flow “directly from his or her status under a clause of the insurance policy without regard to the issue of liability.” Kambara, 667 So.2d at 833. A “named beneficiary” is one who is specifically designated as such in the policy. See Roberts, 350 So.2d at 79.

Hartford does not contend that it falls within the narrow statutory class of entities outlined in section 627.428. Rather, it argues that it is entitled to an award of fees by standing in the shoes of Ryan, the “named insured” under the CGL policies, as both an assignee and equitable subrogee. Thus, the issue we must resolve is whether a surety that itself does not fall within any statutory classification may nevertheless recover attorney’s fees by virtue of its relationship to an insured.

B. Assignment versus Subrogation

A surety may obtain standing to sue its principal’s liability insurer either through an assignment, under principles of subrogation, or both. Despite the express limitations in section 627.428 as to the class of designated entities entitled to recover attorney’s fees, this Court has previously approved an award of attorney’s fees in situations where policy coverage was obtained through an assignment from an insured. The assignment exception is derived from language in our decision in Roberts, where we rejected an award of attorney’s fees in favor of a third-party beneficiary of an insurance contract. 350 So.2d at 79.

In Roberts, an insurer and its insured appealed a district court decision authorizing an award of attorney’s fees to an injured party under section 627.428. Id. at 78. The injured party was neither an “insured [n]or the named beneficiary” under the policy, but was entitled to sue the insurer because of its status as a third-party beneficiary. See id. at 79. Because the injured third party did not fall within the narrow class of entities authorized to recover fees under the statute, we reversed the district court’s award. See Roberts, 350 So.2d at 79. In reaching this decision, we held that

an award of attorney’s fees under Section 627.428(1) is available only to the contracting insured, the insured’s estate, specifically named policy beneficiaries, and third parties who claim policy coverage by assignment from the insured.

Id. (footnotes omitted).

By using the phrase “contracting insured,” we unintentionally created confusion as to whether an “insured” other than the “contracting insured” could recover its fees under the statute. See Prygrocki, 422 So.2d at 315-16. However, we clarified that the term “contracting insured” was not intended to revise the language of the provision, but rather to distinguish between those persons insured under an insurance contract and the third party claimant at issue in Roberts. See id. at 316. We reiterated that the unambiguous terms of the statute clearly applied to all insureds under an insurance policy. See id. Furthermore, the Legislature amended the statute in 1982 to include “any named or omnibus insured or the named beneficiary.” Ch. 82-243, § 376, Laws of Fla.

Unfortunately, in another decision regarding the assignment exception we recognized in Roberts, this Court may have created confusion by using the words “as-signee” and “subrogee” interchangeably. See Fid. & Deposit Co. v. First State Ins. Co., 677 So.2d 266, 267, 269 (Fla.1996). In First State, an entity received an assignment from the insured for the right to recover under the insured’s insurance policy. However, we held that the assignee, as the insured’s “subrogee, will be entitled to attorney’s fees should it ultimately prevail in this litigation.” Id. at 269. As cogently stated in 16 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d (2005),

[t]he distinction between rights arising by virtue of an assignment and by way of subrogation is frequently obscured by defining one in terms of the other, in a manner which makes it difficult to tell whether the usage was an intentional recognition that the two theories are considered as equivalent or an unintentional usage in a context where the difference was unimportant.

Id. § 222:54 (footnotes omitted).

Although we agree that the terms can be interrelated and are often confused, assignment and subrogation remain distinct legal concepts. Thus, the question we must resolve is whether, for purposes of the attorney’s fees statute, obtaining the right to sue the insurer via equitable sub-rogation is functionally equivalent to obtaining that right through an assignment. Because the rights acquired under an assignment differ from the rights acquired by virtue of subrogation, we decline to equate these two distinct principles.

An assignment has been defined as “a transfer or setting over of property, or of some right or interest therein, from one person to another.” Black’s Law Dictionary 128 (8th ed.2004) (quoting Alexander M. Burrill, A Treatise on the Law and Practice of Voluntary Assignments for the Benefit of Creditors § 1, at 1 (James Avery Webb ed., 6th ed. 1894)). Essentially, it is the “voluntary act of transferring an interest.” DeCespedes v. Prudence Mut. Cas. Co., 193 So.2d 224, 227 (Fla. 3d DCA 1966); accord Fla. Power & Light Co. v. Road Rock, Inc., 920 So.2d 201, 204 (Fla. 4th DCA 2006); 3A Fla. Jur.2d Assignments § 1 (2007); 6 Am. Jur.2d Assignments § 1 (2007). Importantly, once transferred, the assignor no longer has a right to enforce the interest because the assignee has obtained all “rights to the thing assigned.” Price v. RLI Ins. Co., 914 So.2d 1010, 1013-14 (Fla. 5th DCA 2005) (quoting Lauren Kyle Holdings, Inc. v. Heath-Peterson Constr. Corp., 864 So.2d 55, 58 (Fla. 5th DCA 2003)).

On the other hand, subrogation is a broader concept, involving “an act of law growing out of the relation of the parties to the original contract of insurance,” 16 Russ & Segalla, supra, § 222:53, where one entity pays the debt or discharges the obligations of another. See 22 Eric Mills Holmes, Holmes’ Appleman on Insurance 2d § 141.1[B] (2003). Two types of subrogation have been recognized-conventional and equitable. Conventional subrogation is created by an agreement between the parties whereby one party having no interest in the matter discharges the debt of another and is thus entitled to the “rights and remedies of the original creditor.” Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 646 (Fla.1999). Essentially, it is an agreement “that the party paying the debt will be subrogated to the rights of the original creditor.” Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. KPMG Peat Marwick, 742 So.2d 328, 332 (Fla. 3d DCA 1999), approved, 765 So.2d 36 (Fla.2000). Indeed, an assignment could be part of a conventional subrogation agreement.

Unlike conventional subrogation, which is created by an express agreement, equitable (sometimes referred to as legal) subrogation arises by operation of law. See DeCespedes, 193 So.2d at 227; 31A Fla. Jur.2d Insurance § 3295 (2002). Equitable subrogation has been defined as “the substitution of one party for another whose debt the party pays, entitling the paying party to rights, remedies, or securities that would otherwise belong to the debtor.” Black’s Law Dictionary 1467. Basically, it is an equitable remedy created “by the legal consequences of the acts and relationships of the parties.” Radio Station WQBA, 781 So.2d at 646. Accordingly, equitable subrogation, “the object of which is to prevent injustice,” is governed by the principles of equity. Holmes, supra, § 141.1[C][1].

The Second District premised its award of attorney’s fees on equitable subrogation, which is a remedy commonly associated with surety relationships. As we explained in Transamerica Insurance Co. v. Barnett Bank of Marion County, 540 So.2d 113, 116 (Fla.1989) (quoting Pearlman v. Reliance Ins. Co., 371 U.S. 132, 137, 83 S.Ct. 232, 9 L.Ed.2d 190 (1962)), a surety “who pays the debt of another is entitled to all the rights of the person he paid to enforce his right to be reimbursed.” In the context of a surety relationship, the key to equitable subrogation lies in the surety’s right to indemnification. Because a surety who pays a judgment on behalf of its principal is entitled to indemnification by its principal, it has the right to be subrogated to any rights the principal has against its liability insurer if that judgment is covered by the principal’s liability policy. See Western World, 358 So.2d at 604.

Although the surety may stand in the shoes of the principal, the principal does not lose its status as an insured under the policy. In fact, as is evident from Ryan’s involvement in the underlying litigation in this case and the principal’s involvement in the underlying coverage dispute in Western World, the insured principal retains its right to sue for insurance coverage. Because the principal retains its rights under the policy, which includes the statutory right to claim attorney’s fees, the surety does not acquire the principal’s status as one of the designated entities entitled to attorney’s fees under the statute. This prevents the insurer from being subject to a claim for attorney’s fees from both the principal (insured) and the surety (subro-gee) when, as in this case, both litigate the same coverage issue. On the other hand, an assignment transfers all of the insured’s rights to a claim under the policy, including its status as an insured under the policy. Thus, an assignee is entitled to an award of fees under section 627.428. See Roberts, 350 So.2d at 79.

We reaffirm our holding in Roberts that only the named or omnibus insured, the insured’s estate, specifically named beneficiaries under the policy, and other third parties who claim policy coverage through an assignment are entitled to an award of fees under section 627.428. See id. at 78-79. Hartford does not fall within the narrow class of entities identified in the statute. Thus, the only way Hartford can recover its fees in this declaratory judgment action is through a valid assignment from Ryan, the named insured under the CGL policies.

C. Alternative Grounds

Although not raised in the Second District, Hartford argues that it obtained a valid assignment of Ryan’s rights under the CGL policies through the General Indemnity Agreement (GIA) entered into between Hartford and Ryan in 1994. We have authority to consider alternative grounds for affirming the decision below that were not raised by the parties. See Radio Station WQBA, 731 So.2d at 644. However, after examining the language of the 1994 GIA, we conclude that it does not constitute an assignment of the rights of the principal to sue its insurer for insurance coverage after the dispute arose.

Hartford also asserts that it is entitled to an award of fees under the statute based on an implied assignment, similar to the one we recognized under the unique circumstances in All Ways Reliable Building Maintenance, Inc. v. Moore, 261 So.2d 181 (Fla.1972). In that case, a house repair company brought suit against both the owner and the insurance company that covered the owner’s house for fire damage. Id. at 131. The owner filed a cross-claim arguing that the insurer was responsible because the insurer’s agent had preap-proved All Ways’ estimate for the repairs. Id. The trial court awarded judgments in favor of All Ways and the owner and approved an award of attorney’s fees to both parties. Southern Am. Fire Ins. Co. v. All Ways Reliable Bldg. Maint., Inc., 251 So.2d 11, 13 (Fla. 4th DCA 1971).

In approving the trial court’s award, this Court determined that a contract between All Ways and the insurance company arose by implication. All Ways, 261 So.2d at 132. This implied contract “logically included an assignment” of the owner’s claim against the insurer. Id. We stated that

[u]nder such circumstances it is highly technical and unrealistic to take the view that [the statute] does not authorize an attorney’s fee for All Ways Reliable. All Ways Reliable was found by implication of the related circumstances to be the assignee of the insured Elsie Moore’s loss claim against the insurance company; and, having successfully sued the insurance company which denied the claim for the amount representing the fire loss, was entitled concomitantly to the attorney’s fee.

Id. We held that, despite being neither a named insured nor a named beneficiary under the policy, All Ways was entitled to an award of its attorney’s fees based on an implied assignment from the owner. Id.

The circumstances justifying the implied assignment in All Ways are distinguishable from the facts in this ease. Hartford did not perform under the bond as a result of the insurers’ determination that the damage was covered by the CGL policies. To the contrary, the insurers maintain that they disputed liability from the beginning, even before Hartford settled the underlying litigation. Moreover, Hartford had a duty to perform under the surety bond regardless of whether the CGL policies covered the damage. Hartford does not, and simply cannot, allege that it detrimentally relied, as the repair company did in All Ways, upon an approval from the insurers prior to performing under the bond. Therefore, there are no circumstances that would justify the existence of either an implied contract or implied assignment between the surety and insurers in this case. To the extent that our decision in All Ways appears to recognize an equitable basis for recovering attorney’s fees under section 627.428, we limit that case to its unique facts.

Hartford lastly argues that “a denial of fees to the Surety would lead to the Contractor’s responsibility to indemnify the Surety for payment of its fees without the possibility of reimbursement from the Primary Insurer and the Excess Insurer.” Continental, 910 So.2d at 301. Essentially, the argument is that a denial of fees to Hartford would “exalt form over substance,” because Ryan is liable for Hartford’s fees regardless of the outcome of this appeal. Id. Continental and Lumber-mens do not agree that the contractor, as principal, would be liable under the GIA for the surety’s attorney’s fees in the underlying coverage dispute. We do not interpret the GIA agreement. Even assuming that Hartford is correct, it is outside this Court’s purview to correct a potential inequity by interpreting a statute contrary to its plain language.

Our conclusion does not rest on whether it is sound public policy to allow a surety to recover its attorney’s fees from the insurer under these circumstances. If there is an injustice that requires the expansion of the statutory class of entities entitled to recover attorney’s fees under section 627.428, that argument is .one best addressed by the Legislature. See Parker v. Parker, 950 So.2d 888, 394 (Fla.2007); Dowell v. Gracewood Fruit Co., 559 So.2d 217, 218 (Fla.1990).

CONCLUSION

As we held in Roberts and again reaf-. firm today, section 627.428 authorizes an award of attorney’s fees only to “the named or omnibus insured or named beneficiary” under an insurance policy and to other third parties who obtain coverage based on an assignment from an insured. Ryan, as the named insured under these policies, has always been entitled to its fees in prosecuting this declaratory judgment action against its insurers. However, absent an assignment, Hartford as a surety is not entitled to attorney’s fees from the insurer under 627.428.

For the foregoing reasons, we quash the Second District’s decision in Continental granting attorney’s fees in favor of Hartford and approve the First District’s decision in Western World denying fees to a surety that failed to obtain an assignment. This case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

LEWIS, C.J., and QUINCE and BELL, JJ., concur.

WELLS, J., concurs in result only with an opinion.

ANSTEAD, J., concurs in part and dissents in part with an opinion.

CANTERO, J., recused.

. At oral argument, Hartford stated that Ryan paid a portion of this settlement. However, the actual amount contributed is unknown because it is part of a confidential settlement agreement not contained in the record.

. On the substantive issue of liability coverage, the Second District noted that J.S.U.B. would govern the analysis of the policies’ coverage provisions, but the court could not determine from its de novo review whether the damage occurred prior to the completion of the project. See Continental, 910 So.2d at 299-300. Accordingly, the court remanded to the trial court to determine when the damage occurred and then decide the case based upon J.S.U.B. Id. at 300. The Second District's decisiori in J.S.U.B. was approved by this Court on the underlying coverage issue. See U.S. Fire Ins. Co. v. J.S.U.B., Inc., No. SC05-1295, — So.2d —, 2007 WL 4440232 (Fla. Dec. 20, 2007).

. The provisions of section 627.428 were originally codified at section 627.0127. However, they were moved in 1971.

. We reject the argument that Hartford is precluded from recovering attorney’s fees because it can be classified as an insurer. This Court has previously awarded attorney's fees under section 627.428 to entities engaged in the business of insurance. For example, in Fidelity & Deposit Co. v. First State Insurance Co., 677 So.2d 266 (Fla.1996), a fire insurer disputed coverage for a fire-damaged property arguing that it had previously cancelled the policy. Id. at 267. The insured settled with its “errors and omissions” insurer and assigned its right to sue the fire insurer for coverage. Id. We held that the "errors and omissions” insurer, which had obtained an assignment from the insured, would be entitled to an award of attorney’s fees if it was successful in the suit against the fire insurer. Id. at 269.

. At the time of our decision in Roberts, the provision authorized an award of fees to "an insured or the named beneficiary under a policy.” § 627.428(1), Fla. Stat. (1975).

. The insurers argue that the "anti-assignment” clause in the GIA precludes an assignment, even subsequent to the loss. However, “it is a well-settled rule that [anti-assignment provisions do] not apply to an assignment after loss.” West Fla. Grocery Co. v. Teutonia Fire Ins. Co., 74 Fla. 220, 77 So. 209, 210-11 (1917); accord Better Constr., Inc. v. Nat’l Union Fire Ins. Co., 651 So.2d 141, 142 (Fla. 3d DCA 1995).