Insurance Company of North America, Plaintiff,counterdefendant-appellant, Cross Appellee, v. Clausson P. Lexow, United Storage Systems, Inc. D/b/a Theextra Closet of Ocala, Ltd., Defendants,counterclaim-appellees, Cross Appellants, 980 F.2d 704 (11th Cir. 1993)

This case arose from disputes between the insured and the insurer following the destruction of the insured's business premises by fire.¹  Our partial disposition of the case included certification of the following attorney's fee question to the Supreme Court of Florida:

DOES THE PHRASE "UNDER A POLICY OR CONTRACT" IN FLORIDA STATUTES, § 627.428(1) INCLUDE SUBSEQUENT LITIGATION TO DETERMINE WHETHER THE INSURED OR THE SUBROGATED INSURER IS ENTITLED TO FUNDS RECOVERED BY THE INSURED FROM A TORTFEASOR AFTER THE INSURER HAS PAID THE INSURED ITS POLICY LIMITS, ALTHOUGH THESE FUNDS ARE INSUFFICIENT TO COMPENSATE THE INSURED'S LOSS, FOR THE PURPOSE OF AWARDING ATTORNEY'S FEES TO THE INSURED ACQUIRING A JUDGMENT AGAINST THE INSURER FOR THE FUNDS RECEIVED FROM THE TORTFEASOR?

Insurance Co. of N. Am. v. Lexow, 937 F.2d 569, 574 (11th Cir. 1991). The Florida Supreme Court has answered the question certified by this court in the affirmative.²  Insurance Co. of N. Am. v. Lexow, 602 So. 2d 528, 531 (Fla.1992).

Accordingly, the district court's denial of the insured Lexow's motion for attorney's fees is REVERSED. This case is REMANDED to the district court with instructions to reconsider Lexow's motion for attorney's fees in view of the Florida Supreme Court's resolution of this issue.