Case: Donna Hurst, as Personal Representative of the Estate of Howard Mathews v. Daymon Bell and Progressive Select Insurance Company (Fla. 2d DCA, Case No. 2D2025-0645)
Status: Decided (May 27, 2026; Reissued with Written Opinion July 29, 2026)

Overview

Under Florida law, when a plaintiff recovers a judgment sufficiently in excess of an unaccepted Proposal for Settlement (PFS) or Offer of Judgment, courts routinely tax attorney's fees against the defendant. Plaintiffs then routinely attempt to collect these post-judgment fee awards directly from the defendant's liability insurer under third-party joinder statutes.

Since the 2015 seminal Supreme Court ruling in GEICO v. Macedo, policyholders and personal injury plaintiffs have leveraged vague "Additional Payments" language in insurance contracts to force carriers to cover adverse fee judgments. In a significant victory for insurers, Florida’s Second District Court of Appeal recently affirmed that clear, specific language in a policy's "Additional Payments" section that excludes fees assessed against an insured successfully shields the insurer from paying the adverse attorney's fees assessed against the insured when a PFS is rejected. 

The ruling highlights the critical importance of exact contractual drafting in insurance policy provisions, offering a clear roadmap for carriers looking to avoid unintended exposure to statutory fee liability.

While the trial court's post-judgment award included both attorney's fees and taxable court costs, Progressive voluntarily paid the taxable costs portion. The Second DCA's ruling applied exclusively to the adverse statutory attorney's fee award."

The Anatomy of the Policy Language

In Hurst v. Bell & Progressive, the dispute arose after the plaintiff rejected a pre-suit $100,000 policy limits tender and a subsequent $160,000 Proposal for Settlement served pursuant to section 768.79, Florida Statutes. Following a jury verdict exceeding policy limits, the trial court entered a separate post-judgment award for attorney's fees against the insured based on the rejected offer. Seeking to recover the adverse fee award, the plaintiff moved under section 627.4136(4), Florida Statutes, to join the insurer directly to the judgment. While a general magistrate recommended granting joinder, the circuit court sustained the insurer's exceptions and denied the motion, leading to the appeal.

The Second DCA’s analysis turned strictly on the policy's plain text under its "Additional Payments" section, which set up two competing provisions:

• Specific Disclaimers: "in addition to our limit of liability, we will pay for an insured person: 1. all expenses we incur in the settlement of any claim or in the defense of an insured person in any lawsuit. This does not include attorney fees awarded or assessed against an insured person..."

• General Expense Provisions: "5. reasonable expenses, including loss of earnings up to $200 per day, incurred at our request."

The plaintiff argued that because the insurer directed the defense, the fee award constituted a reasonable expense incurred at the insurer's request. The court rejected this theory, ruling that general provisions cannot override explicit, specific disclaimers. Furthermore, the court clarified that "expenses incurred at our request" naturally applies to cooperation-related expenses (such as attending depositions or trial), not adverse statutory fee judgments assessed in favor of opposing counsel.

"This ruling provides essential guidance for our insurance company clients," noted Tampa Partner Dorothy DiFiore. "This case determined that this policy had used language that effectively protected the insurer from having to pay the fees that were taxed against the insured, usually when a proposal for settlement is rejected, but could also be for sanctions. There are a lot of other policies that have attempted this where courts found the language ineffective. Seeing what one court has found effective is immensely valuable for carriers when reviewing their policy structures."

Why This Policy Succeeded

In precedent cases like GEICO General Insurance Co. v. Macedo, Florida courts found automobile liability policies ambiguous when general terms like "expenses" or "costs" were used without explicit exclusions. In Hurst, the Second DCA distinguished prior case law by pointing out that explicit negative drafting creates immediate clarity. Where an insurer explicitly states that settlement-and-defense expenses do not include attorney fees awarded or assessed against an insured, courts will enforce the contract as written. Furthermore, courts will not allow general catch-all provisions regarding "expenses incurred at our request" to silently restore coverage for a specific fee category that was expressly excluded elsewhere in the contract. The court also re-emphasized that simply because other courts have construed different policy language in favor of coverage does not render a clearly drafted policy ambiguous.

Distinguishing Federal Precedent

Plaintiffs frequently cite federal cases like Prime Property & Casualty Ins. v. O Mendoza Trucking to argue for coverage. The Second DCA distinguished Prime, noting that the policy in Prime isolated its fee disclaimer to a specific "court costs" clause. In contrast, Progressive's disclaimer applied broadly to "all expenses... in the defense of an insured person," leaving no gap for general expense clauses to exploit. 

Key Takeaways

• Audit Policy Provisions: Insurers should evaluate existing liability policies to ensure "Additional Payments" and defense expense clauses contain direct, unambiguous language clarifying that adverse statutory fees and sanctions assessed against the insured are specifically not defense expenses.

• Resist Expanding "Incurred at Our Request" Clauses: Defense counsel can successfully rely on Hurst to argue that an insurer exercising its contractual right to control defense or settlement does not convert adverse attorney fee judgments into a covered requested expense.

• Joinder Defense Strength: Under section 627.4136(4), Florida Statutes, an insurer cannot be joined to a fee judgment unless policy coverage exists. Precise policy language serves as the primary barrier against post-trial joinder motions.

Update by:

Dorothy DiFiore - Tampa Partner

This article is intended for informational purposes only and does not constitute legal advice. Please consult with an attorney to discuss your specific legal situation.