Thursday, July 16, 2009

Third DCA Reverses Fee Award in Lemon Law Arbitration Dispute

In General Motors Corporation v. Sanchez (3D08-1769), the Third DCA addressed the award of attorneys fees to Sanchez. The "discrete controversy [related] to the entitlement of attorneys’ fees for the successful representation of a motor vehicle purchaser before the Lemon Law arbitration board."

The court stated: "It is, of course, well established in Florida, which fully endorses the so called American Rule on the question, that each party, including the successful one, in litigation must ordinarily bear the burden of his own attorneys’ fees...Of the narrow exceptions to this doctrine, the only one which even conceivably applies arises when fees are authorized by statute...

The square holdings of the Florida Supreme Court in Hubbel v. Aetna Casualty & Surety Co., 758 So. 2d 94, 97 (Fla. 2000), in which the Court stated: “Generally, the law is clear that attorney’s fees are not considered to be a ‘loss’ or damages, and to be recoverable must be expressly provided for by statute, rule, or contract[,]” and in Bidon v. Department of Professional Regulation, 596 So. 2d 450, 452 (Fla. 1992), where it was said that “the legislature is presumed to have been aware of the case law excluding attorney’s fees from the recovery of actual or compensatory damages,” leave no doubt as to this proposition.

It is therefore clear that the present action which seeks to recover expenses are not “damages,” cannot be maintained, and it follows, the second sentence in section 681.112(1), providing for fees in a successful action under that statute cannot apply.


The appellee argues that Gelinas v. Forest River, Inc., 931 So. 2d 970 (Fla. 4th DCA 2006), review denied, 954 So. 2d 27 (Fla. 2007), requires a different result. The trial court agreed but we don’t...[In Gelinas] The manufacturer seems not to have argued, and the Fourth District seems not to have considered, analyzed or, much less, resolved the underlying issue of whether those fees are recoverable at all. Having engaged in that process ourselves, we feel unbound by any contrary indications in the language of the Gelinas decision. We feel generally the same way about Fox v. Porsche Cars North America, Inc., 279 F. App’x 748 (11th Cir. 2008), which, indeed, directly holds that these fees are recoverable. In Fox, the federal court, in discharging its duty under Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), to apply the existing law of Florida, felt bound by the Gelinas dicta – in the absence of any competing authority. That authority now exists.


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