United States v. Pepper's Steel & Alloys, Inc.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 01-11249
October 21, 2003
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 85-00571-CV-AJ

UNITED STATES OF AMERICA,
Plaintiff,

versus

PEPPER’S STEEL & ALLOYS, INC.,
Defendant,
Cross-Defendant,
Third-Party Plaintiff,
Appellant,
Cross-Appellee,

FLORIDA POWER & LIGHT COMPANY,
Defendant,
Cross-Defendant,

NORTON BLOOM,
Defendant,
Third-Party-Plaintiff,
Appellant,
Cross-Appellee,

THOMAS A. CURTIS, WILLIAM PAYNE,
FLORA PAYNE, LOWEL PAYNE,
Defendants,

HOME INSURANCE COMPANY, MIAMI BATTERY
MANUFACTURING COMPANY, TRANSPORTATION
INSURANCE CO., CONTINENTAL CASUALTY
COMPANY, CERTAIN UNDERWRITERS AT LLOYD’S
LONDON, London and Insurance Companies
subscribing to twenty-two policies numbered
inclusively L116-8, L1024-27, L1209-12,
C116-18, C1024-27, and C1209-12 (Wallis and
Companies) a.k.a. London Market Insurers,
LEXINGTON INSURANCE COMPANY,
Third-Party Defendants,

UNITED STATES FIDELITY AND GUARANTY COMPANY,

Third-Party Defendant,
Appellee,
Cross-Appellant.
________________________

Appeals from the United States District Court
for the Southern District of Florida
_________________________

(October 21, 2003)

Before BIRCH and WILSON, Circuit Judges, and DOWD *, District Judge.

PER CURIAM:

Pepper’s Steel & Alloys, Inc. and Norton Bloom appealed the district

court’s order denying their petition for attorneys’ fees incurred in seeking to

*
Honorable David D. Dowd, Jr., United States District Judge for the Northern District of
Ohio, sitting by designation.

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enforce a settlement agreement with United States Fidelity and Guaranty Co.1 We

issued an opinion in this case on April 25, 2002, in which we certified the

following question to the Florida Supreme Court: “UNDER SECTION 627.428

OF THE FLORIDA STATUTES, IS AN INSURED ENTITLED TO AN AWARD

OF ATTORNEYS’ FEES INCURRED IN ENFORCING A SETTLEMENT

AGREEMENT AGAINST AN INSURER?” United States v. Pepper’s Steel &

Alloys, Inc., 289 F.3d 741, 744 (11th Cir. 2002) (per curiam). The Florida

Supreme Court rephrased the certified question as follows: “IS AN INSURED

ENTITLED TO ATTORNEYS’ FEES UNDER SECTION 627.428, FLORIDA

STATUTES, FOR LITIGATING, DURING A LAWSUIT TO DETERMINE

COVERAGE UNDER AN INSURANCE POLICY, WHETHER THE INSURED

AND THE INSURER SETTLED THE COVERAGE ISSUE?” Pepper’s Steel &

Alloys, Inc. v. United States, 850 So. 2d 462, 464 (Fla. 2003) (per curiam). It then

answered the rephrased question in the affirmative, holding that “where an insured

sues its insurer for coverage under a policy and the parties later contest whether

they have reached a settlement, section 627.428 allows a prevailing insured to be

awarded the attorneys’ fees incurred in litigating that issue.” Id. at 467. In light of

1
United States Fidelity and Guaranty Co. cross-appeals, asserting that the fee petition was
deficient and untimely. As that argument lacks merit, we decline to address it herein.

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that holding, we VACATE the district court’s order denying the petition for

attorneys’ fees as it pertains to Pepper’s Steel and Bloom2 and REMAND this case

for further proceedings consistent with this opinion.

2
Several other insureds joined Pepper’s Steel and Bloom’s petition for attorney’s fees
before the district court. As they did not appeal the district court’s order, we do not have
jurisdiction to grant them relief. See Zipperer ex rel. Zipperer v. Sch. Bd. of Seminole County,
111 F.3d 847, 849 (11th Cir. 1997) (“If a party fails to file a timely notice of appeal, the appellate
court is without jurisdiction to hear the appeal.”).

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