Vainberg v. Florida Insurance Guaranty Association
After an insurer elected to repair (creating a separate 'Drew' repair contract) and later became insolvent, FIGA was substituted as defendant and the parties entered a consent judgment for policy limits, reserving fee entitlement. The Fourth DCA reversed the denial of fees, holding that a suit for breach of a Drew repair contract arises 'under a policy or contract executed by the insurer' within section 627.428, and that FIGA's course of conduct—partial payment cutting Ordinance and Law line items, coverage-denying affirmative defenses, corporate representative testimony, pretrial stipulation, and summary judgment motion—constituted denial 'by affirmative action, other than delay' under section 631.70.
Key facts
- Vainberg sued an insurer for breach of a repair contract created when the insurer elected to repair rather than pay under an insurance policy; the insurer later became insolvent.
- FIGA was substituted as defendant, the parties entered a consent judgment for policy limits with fees reserved, and the trial court denied Vainberg's request for attorney's fees.
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Why it matters
This is the first published decision squarely holding that a Drew election-to-repair contract supports statutory attorney's fees under section 627.428, closing what would otherwise be a loophole letting insurers avoid… — full analysis with a trial
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