I learned many years ago the problem with getting your attorneys fees from FIGA. I won a case against an insurer and was awarded a sizeable attorneys fee after a fee hearing. The day after the fee order was entered the insurance company went under. They were ultimately taken over by the Florida Insurance Guaranty Association – FIGA. While FIGA was required to pay my client’s claim for the damage to her home, it was not required to pay my fees. My fees were simply an unsecured claim against the assets of the insolvent insurer to be paid once they sold their desks, phones, filing cabinets and unused paper clips. I was never paid.
Pursuant to Florida Statute Section 631.70, FIGA is not responsible for an insured’s attorneys fees or costs “except when the association denies by affirmative action, other than delay, a covered claim or a portion thereof.”
In Florida Insurance Guaranty Association v. Messina, ____ So.3d ____ (Fla. 4th DCA August 24, 2011), the insured sued FIGA, and FIGA filed an answer and affirmative defenses denying coverage. Soon thereafter, FIGA settled the claim, but denied that the insured’s attorney was entitled to fees and costs. According to FIGA it had not denied the claim by “affirmative action” because it “did not really contest coverage.” The Court disagreed, and held that FIGA’s answer and affirmative defenses denying coverage constituted denying the claim by “affirmative action.” Go figure.