All Underwriters v. Mark Weisberg

ALL UNDERWRITERS, All Underwriters subscribing to policy number 03789600 including
Underwriters at Lloyds, London, Plaintiff-Counter-Defendant-Appellee,

v.

Mark WEISBERG, Robert Berzon, Defendants-Third-Party Plaintiffs-Counter-Claimants-Appellants.

No. 99-11778.

United States Court of Appeals,

Eleventh Circuit.

Aug. 18, 2000.

Appeal from the United States District Court for the Southern District of Florida.

Before ANDERSON, Chief Judge, and DUBINA and SMITH*, Circuit Judges.

DUBINA, Circuit Judge:

This appeal involves the question of whether a district court may award attorney's fees pursuant to

a state statute in a marine insurance contract dispute. The district court answered the question in the negative.

We reverse.

I. Background

Appellants, Mark Weisberg and Robert Berzon ("Weisberg," "Berzon," or collectively, "Appellants"),

entered into a marine insurance contract with Appellee, Underwriter's at Lloyds, London ("Underwriters"),

to insure Appellants' 32 foot motor vessel named "After Hours." The policy provided hull and machinery

coverage for $50,000, beginning on September 27, 1996, and extending for a one-year period. Underwriters

issued the policy pursuant to Florida's Surplus Lines Law and delivered it to Weisberg's residence in Miami,

Florida.

___________________

*Honorable Edward S. Smith, U.S. Circuit Judge for the Federal Circuit, sitting by designation.

On November 16, 1996, the After Hours sank as a result of heavy winds and storm surge. Appellants
made a claim for constructive total loss of the After Hours within four days of the sinking. After conducting

an investigation, Underwriters filed a declaratory judgment action in the United States District Court for the

Southern District of Florida seeking to have the contract deemed void ab initio due to alleged

misrepresentations by Appellants in their application for insurance. Underwriters invoked the district court's

admiralty jurisdiction pursuant to 28 U.S.C. § 1333 and sought the special admiralty procedures pursuant to

Federal Rule of Civil Procedure 9(h). Appellants filed a counter-claim against Underwriters for breach of

contract.

In their Answer and Counterclaim, Appellants demanded attorney's fees pursuant to Fla. Stat. §

627.428. The district court struck Appellants' demand for attorney's fees, finding that "[a]ny Florida law

awarding attorney's fees to a prevailing party in the absence of bad faith clearly conflicts with federal

maritime law and cannot be applied."

After the district court denied Underwriters' summary judgment motion, the Parties agreed to settle

Appellants' claim for the full contractual value of Appellants' loss, plus costs and interest. In the settlement

agreement, Appellants specifically reserved their right to appeal the district court's order striking their demand

for attorney's fees and reserved their right to seek attorney's fees. After the district court entered judgment

in favor of Appellants on their counter-claim, the Appellants filed a timely appeal on the issue of attorney's

fees.

On appeal, this court faces two questions. First, we must decide whether Fla. Stat. § 627.428 is

procedural or substantive law for Erie1 purposes. If we hold that § 627.428 is substantive law, then we must

decide whether a federal court may award attorney's fees pursuant to a state statute in a marine insurance

controversy.

II. Standard of Review

This court reviews a district court's application of admiralty law de novo. See Isbrandtsen Marine

Serv., Inc. v. M/V Inagua Tania, 93 F.3d 728, 733 (11th Cir.1996).

1
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
 III. Analysis

A. Is Fla. Stat. § 627.428 Procedural or Substantive Law?

Underwriters contend that Fla. Stat. § 627.428 is procedural law, and thus, a federal court sitting in

admiralty cannot apply it.2 See Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct. 2211,

135 L.Ed.2d 659 (1996) ("Under the Erie doctrine, federal courts sitting in diversity apply state substantive

law and federal procedural law."). Underwriters correctly notes that this circuit has referred to Fla. Stat. §

627.428 as procedural. See Blasser Bros. v. Northern Pan-American Line, 628 F.2d 376, 386 (5th Cir.1980)

("The applicable statute, however, is a procedural one, and the parties must satisfy the statutory

requirements.");3 Fidelity-Phenix Fire Ins. Co. of New York v. Cortez Cigar Co., 92 F.2d 882, 885 (5th

Cir.1937) ("This statute is plainly a procedural one limited to the courts of Florida.").4 This court, however,

has consistently held that "this right to attorneys' fees is applicable in federal courts sitting in Florida."5

Blasser Bros., 628 F.2d at 386; see also Steelmet, Inc. v. Caribe Towing Corp., 842 F.2d 1237, 1245 (11th

2
Fla. Stat. § 627.428 provides:

(1) 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.
3
One commentator has stated that "the context of the court's remark [in Blasser Brothers ] indicates
that it meant only to assert that the attorneys' fee statute specified the procedures for asserting a claim
under it, and not that it was a procedural rule for vertical choice-of-law purposes." David W. Robertson,
Court-Awarded Attorneys' Fees in Maritime Cases: The "American Rule" in Admiralty, 27 J. Mar. L.
Com. 507, 565 n. 331 (1996).
4
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc ), this court adopted as binding
precedent all decisions rendered by the former Fifth Circuit prior to October 1, 1981.
5
This court has held that a federal court sitting in Georgia cannot award attorney's fees pursuant to Fla.
Stat. § 627.428 in an insurance contract dispute where the contract was written in Florida and covered
Florida property. See Fidelity-Phenix, 92 F.2d at 885. We noted that the statute expressly confines itself
to judgments rendered by courts in Florida. See id.; see also Fla. Stat. § 627.428 ("Upon the rendition of
a judgment by any of the courts of this state...."). In turn, we reasoned that this right to reimbursement is
not inherent in the contract, but is an incident of a Florida suit on an insurance contract made anywhere.
See Fidelity-Phenix, 92 F.2d at 885.
Cir.1988); North Am. Life & Casualty Co. v. Wolter, 593 F.2d 609, 611 (5th Cir.1979); Meeks v. State Farm

Mutual Auto. Ins. Co., 460 F.2d 776, 781 (5th Cir.1972); Coblentz v. American Sur. Co. of New York, 421

F.2d 187, 188 (5th Cir.1969). By applying Fla. Stat. § 627.428 in federal court, we have obviously viewed

the statute as substantive law for Erie purposes.

Moreover, this court has referred to Fla. Stat. § 627.428 as substantive law for Erie purposes. See

Windward Traders, Ltd. v. Fred S. James & Co. of New York, 855 F.2d 814, 817 n. 3 (11th Cir.1988). In

Stuyvesant Insurance Co. of New York v. Nardelli, 286 F.2d 600 (5th Cir.1961), our predecessor court cited

Orlando Candy Co. v. New Hampshire Fire Insurance Co. of Manchester, 51 F.2d 392 (S.D.Fla.1931), for

the proposition that this statute applies to actions brought in federal courts sitting in Florida. See 286 F.2d

at 604 n. 11. The district court, in Orlando Candy, reasoned that this "statute imposes a liability for judicially

determined delinquency on the part of an insurer in the payment of its obligation. A corresponding right of

recovery necessarily arises in favor of the beneficiary. The right thus created in favor of the beneficiary is

a substantive right...." See 51 F.2d at 393.

In addition, the Florida state courts have viewed Fla. Stat. § 627.428 as substantive law. See

Bitterman v. Bitterman, 714 So.2d 356, 363 (Fla.1998) ("The ability to collect attorney's fees from an

opposing party, as well as the obligation to pay such fees, is substantive in nature."); L. Ross, Inc. v. R.W.

Roberts Constr. Co., Inc., 481 So.2d 484, 485 (Fla.1986) ("The right to attorney fees is a substantive one....").

As the Fifth District Court of Appeals explained in L. Ross:

Statutes, such as 627.428, Florida Statutes (1983), which create a new right to attorney's fees creates
a substantive right in favor of a limited class of potential plaintiffs (insureds) and a substantive
burden or obligation upon a limited class of potential defendants (insurers). The right to an attorney's
fee is substantive because it gives to a party who did not have that right the legal right to recover
substance (money!) from a party who did not theretofore have the legal obligation to render or pay
that money. The right is not merely a new or different remedy to enforce an already existing right
and is, for that reason, not merely procedural.

See L. Ross, Inc. v. R.W. Roberts Constr. Co., Inc., 466 So.2d 1096, 1098 (Fla.App. 5th Dist.1985).

Accordingly, we hold that Fla. Stat. § 627.428 is substantive law for Erie purposes.

B. Are Attorney's Fees Available in Marine Insurance Contract Disputes?
 Appellants argue that the district court erred in holding that a federal maritime law existed on the

issue of attorney's fees, thereby preempting the application of Fla. Stat. § 627.428. Accordingly, we must

resolve whether federal or state law governs.

Federal courts have long considered actions involving marine insurance policies to be within the

admiralty jurisdiction of the federal courts and governed by federal maritime law. See Wilburn Boat Co. v.

Fireman's Fund Ins. Co., 348 U.S. 310, 321, 75 S.Ct. 368, 99 L.Ed. 337 (1955); New England Mut. Marine

Ins. Co. v. Dunham, 78 U.S. (11 Wall.) 1, 33-34, 20 L.Ed. 90 (1870); Morewitz v. West of England Ship

Owners Mut. Protection & Indem. Ass'n, 896 F.2d 495, 498-99 (11th Cir.1990); Morrison Grain Co., Inc.

v. Utica Mut. Ins. Co., 632 F.2d 424, 428 n. 4 (5th Cir.1980). "But, when neither statutory nor judicially

created maritime principles provide an answer to a specific legal question, courts may apply state law

provided that the application of state law does not frustrate national interests in having uniformity in

admiralty law." Coastal Fuels Mktg., Inc. v. Florida Express Shipping Co., Inc., 207 F.3d 1247, 1251 (11th

Cir.2000); see also Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 222-23, 106 S.Ct. 2485, 91 L.Ed.2d

174 (1986) ("[T]he extent to which state law may be used to remedy maritime injuries is constrained by a

so-called 'reverse-Erie ' doctrine which requires that the substantive remedies afforded by the States conform

to governing federal maritime standards."); Steelmet, Inc. v. Caribe Towing Corp., 779 F.2d 1485, 1488 (11th

Cir.1986) ("One must identify the state law involved and determine whether there is an admiralty principle

with which the state law conflicts, and, if there is no such admiralty principle, consideration must be given

to whether such an admiralty rule should be fashioned. If none is to be fashioned, the state rule should be

followed."). The parties in this case differ as to whether an applicable maritime principle governs the

question at issue.

Underwriters argues that there exists a well-established maritime law prohibiting any award of

attorney's fees in an admiralty action absent a contract provision, a federal statute, or bad faith in the litigation

process. See Coastal Fuels, 207 F.3d at 1250; Noritake Co., Inc. v. M/V Hellenic Champion, 627 F.2d 724,

730 n. 5 (5th Cir.1980). Because Fla. Stat. § 627.428 allows an insured to collect attorney's fees based solely
on whether he prevailed, Underwriters asserts that § 627.428 conflicts with established maritime law.

Appellants agree that, in general, attorney's fees are not recoverable in admiralty actions. They,

however, contend that this general rule does not apply in the context of marine insurance contract actions.

The Supreme Court has held that in the absence of a specific and controlling rule, the interpretation or

construction of a marine insurance contract is to be determined by state law. See Wilburn Boat, 348 U.S. at

321, 75 S.Ct. 368 ("We, like Congress, leave the regulation of marine insurance where it has been—with the

States."); see also Steelmet, 842 F.2d at 1244 n. 9 ("[A]dmiralty courts will generally look to appropriate

state law in determining questions involving a marine insurance contract.") (quoting Gulf Tampa Drydock

Co. v. Great Atlantic Ins. Co., 757 F.2d 1172, 1174 (11th Cir.1985)). "Having held that state law controls

the interpretation of marine insurance policies, it would defy both logic and sound policy were we to hold

that the applicability of attorney's fees vel non must be determined by reference to uniform federal law." INA

of Texas v. Richard, 800 F.2d 1379, 1381 (5th Cir.1986). Thus, the question becomes whether there exists

an established federal maritime policy addressing the specific issue of whether attorney's fees lie in the

context of marine insurance contract disputes.

This circuit has awarded attorney's fees pursuant to Fla. Stat. § 627.428 in a number of marine

insurance contract disputes. See Windward Traders, 855 F.2d at 819-20 (11th Cir.1988) (awarding attorney's

fees pursuant to Fla. Stat. § 627.428 where a vessel owner prevailed against his insurers to recover under a

marine insurance contract); Steelmet, 842 F.2d at 1245 (same); Stuyvesant, 286 F.2d at 604 (awarding

attorney's fees pursuant to Fla. Stat. § 625.08 (now codified as § 627.428) where a vessel charterer prevailed

against the vessel owner's insurers to recover under a marine insurance contract); see also Blasser Bros., 628

F.2d at 386 (rejecting an attorney's fees award pursuant to Fla. Stat. § 627.428 where the vessel owner failed

to follow the statute's procedures); American Eastern Dev't Corp. v. Everglades Marina, Inc., 608 F.2d 123,

125-26 (5th Cir.1979) (rejecting an attorney's fees award pursuant to Fla. Stat. § 627.428 because the statute

did not permit an award of fees when an injured third party beneficiary brought the case).6 Underwriters

6
Underwriters argues that these cases are distinguishable from the case at bar because they followed
the general maritime principle of awarding attorney's fees based upon a contract provision or bad faith.
notes that in these cases, this court did not address expressly whether an established federal maritime policy

existed. Rather, this court assumed without any discussion that state law applied. Nonetheless, because these

cases consistently applied state law to decide whether or not attorney's fees lie in the context of a marine

insurance dispute, they strongly support, if not implicitly hold, that there exists no specific and controlling

federal law relating to attorney's fees in maritime insurance litigation. See Robertson, 27 J. Mar. L. Com. at

562 ("The ... Eleventh Circuit take[s] the view that '[t]here is no specific and controlling federal rule of law

relating to attorney's fees in maritime insurance litigation' and that therefore 'state law ... govern[ ]s the issue

... whether or not attorney's fees lie in the context of a marine insurance dispute.' "). Furthermore,

Underwriters has not cited, nor have we found, any Eleventh Circuit decision which rejects an award of

attorney's fees in the context of a marine insurance contract dispute on the basis that federal law and not state

law applies.

Two other courts of appeal have addressed this issue and have reached opposite results from each

other. In INA of Texas v. Richard, 800 F.2d 1379 (5th Cir.1986), the Fifth Circuit, citing to a number of cases

from the Old Fifth Circuit, held that "[t]here is no specific and controlling federal rule of law relating to

attorney's fees in maritime insurance litigation." Id. at 1381. To the contrary, the court concluded that the

Fifth Circuit has consistently found state law to govern the issue of whether or not attorney's fees lie in the

context of a marine insurance contract dispute. See id. In contrast, the Second Circuit, in American National

Fire Insurance Co. v. Kenealy, 72 F.3d 264 (2nd Cir.1995), held that there exists an established federal

maritime law that prohibits attorney's fees in marine insurance contract disputes. See id. at 270.

Underwriters argues that this court should reject its prior decisions and the Fifth Circuit's decision

in Richard7 and follow the decision in Kenealy as signifying the emergence of an established federal law.

None of the above cited cases, however, relied upon bad faith or a contract provision in awarding
attorney's fees. For example, in affirming an award of attorney's fees, this court, in Stuyvesant, made no
mention of bad faith or of a contract provision as the reason it awarded attorney's fees. See 286 F.2d at
604. Instead, this court awarded attorney's fees under Fla. Stat. § 627.428 solely because the insured
prevailed in establishing the insurers liability on the policy. See id.
7
Underwriters also argues that this court should not follow the Richard decision because it relied on
cases which impermissibly engaged in a weighing of state interests versus federal interests. The court in
In reviewing the Kenealy decision, we, however, observe that the cases which underlie the court's rationale

in Kenealy do not support the notion of an emerging federal rule of law relating to attorney's fees in maritime

insurance litigation. See Robertson, 27 J. Mar. L. Com. at 566 ("It [ ] appears that [Kenealy ] was wrongly

decided. The court mistakenly took the American rule—a general federal procedural rule—for a substantive

rule of maritime law, and wrongly used that rule to displace state substantive law.").

The Kenealy court concluded that the Second Circuit in Ingersoll Milling Machine Co. v. M/V

Bodena, 829 F.2d 293 (2d Cir.1987), held that the general prohibition on attorney's fees in admiralty suits

applies in a suit over a marine insurance contract. See 72 F.3d at 270. Next, the Kenealy court rejected the

Richard decision by noting that the First and Third Circuits, writing after Ingersoll, reached the same

conclusion as Ingersoll. However, neither the First nor the Third Circuit cases dealt with a dispute over a

marine insurance contract. The Third Circuit, in Sosebee v. Rath, 893 F.2d 54 (3d Cir.1990), faced a maritime

tort action. See id. at 55. In Southworth Machinery Co. v. F/V Corey Pride, 994 F.2d 37 (1st Cir.1993), the

First Circuit found the defendant liable as a result of its breach of its express warranty for parts and

workmanship incident to the repair of a ship which is a standard contractual breach to which maritime law

has always applied. See id. at 42. Moreover, the First Circuit's decision supports the proposition that federal

maritime law does not cover marine insurance contract disputes. The First Circuit stated that:

State statutes providing for attorney's fees may sometimes be given effect in admiralty cases, notably,
where the attorney's fees are awarded incident to a dispute that is not normally a subject of maritime
law. For example, in Pace v. Insurance Company of North America, 838 F.2d 572, 578-79 (1st
Cir.1988), we held that maritime law did not preempt a Rhode Island cause of action allowing
recovery of damages and attorney's fees for an insurer's bad faith refusal to pay or settle claims; the
refusal to settle [insurance] claims is normally left untouched by maritime law.

Id. at 41 (emphasis added). Thus, the cases relied upon by Kenealy do not support the Kenealy court's

proposition that they reached the same conclusion as Ingersoll.

In addition, Underwriters does not provide any reason, nor have we found one, to require a unitary

Richard, however, did not itself engage in any weighing of interests. Instead, the court held that no
federal law and no national interest in uniformity existed on this point, thereby obviating any reason to
weigh state and federal interests for no federal interest existed. See 800 F.2d at 1381. Accordingly, we
reject Underwriters's argument on this point.
and uniform federal rule respecting attorney's fees in maritime insurance litigation. See INA, 800 F.2d at

1381; see also Coastal Fuels, 207 F.3d at 1251 (holding that no reason existed to create a uniform national

rule in admiralty where the case concerned attorney's fees and whether the contractual provision which

provided for attorney's fees should allow a party to recover attorney's fees where it succeeded on all but one

minor issue).

In conclusion, we hold that a district court may award attorney's fees pursuant to Fla. Stat. § 627.428

against an insurer in a maritime insurance contract case. Accordingly, we reverse the district court's judgment

and remand this case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.