Full Opinion

Third District Court of Appeal State of Florida Opinion filed September 2, 2026. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D25-0873 Lower Tribunal No. 19-29387-CA-01 ________________ Florida Insurance Guaranty Association, Appellant, vs. Danielle Simmons, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Charles Kenneth Johnson, Judge. Conroy Simberg, and Hinda Klein (Hollywood), for appellant. Cankaya Law, and Deniz S. Cankaya (Fort Lauderdale), for appellee. Before FERNANDEZ, MILLER and LOBREE, JJ. FERNANDEZ, J. Florida Insurance Guaranty Association (“FIGA”) appeals the trial court’s “Order Granting Plaintiff’s Motion to Substitute Defendant and Enforce Settlement” and “Omnibus Order on [FIGA’s] Motion for Rehearing and/or Motion for Clarification Filed on November 26, 2024, and Plaintiff’s Second Motion to Enforce Settlement, Motion for Common Law Interest, and Motion for Sanctions filed March 3, 2025.” We reverse and remand for an evidentiary hearing to determine whether any payments to counsel were for attorney’s fees and, if not, whether those portions were payments that resulted from coverage by the insurance policy. FACTS AND PROCEDURAL HISTORY In October 2019, Danielle Simmons (“Simmons”), the insured, sued her homeowner’s carrier, United Property & Casualty Insurance Company (“UPC”) for benefits Simmons sought due to Hurricane Irma damages to her property. On November 11, 2022, the parties mediated and entered into a settlement agreement for a lump sum of $75,000.00. The mediator provided a written confirmation of the agreement (“the Mediation Agreement”) which stated that the claim was settled for $75,000.00; that the settlement was inclusive of all claims; and that “[u]nless otherwise indicated herein, each Party is responsible for its own attorney’s fees and costs incurred in 2 connection with this matter, including the cost of mediation.” The Mediation Agreement did not specify that any portion of the $75,000.00 consisted of attorney’s fees pursuant to section 627.428, Florida Statutes (2022). 1 After mediation was completed, defense counsel drafted a “General Release of All Claims,” which was executed by both parties. The release indicated that payment of $75,000.00 would be issued via three checks: one $37,500 check payable to Simmons, Joe Simmons, Stellar Public Adjusting Services, and Rushmore Loan Management Services; one $22,500 check payable to current counsel, Deniz S. Cankaya, P.A.; and one check payable to former counsel, The Diener Law Firm, P.A. for $15,000.00, which had an attorney’s fee lien on the proceeds. The release stated, “This payment is inclusive of costs, attorney fees, statutory interest; . . . and/or any other damages RELEASOR has claimed or may claim in the future against UPC on the subject of claims.” After the settlement, but before payment was issued, UPC was declared insolvent. Thus, FIGA stepped in as the statutory guarantor. Simmons moved to substitute FIGA as the party defendant in her case and to enforce the settlement agreement against FIGA. Simmons argued that 1 Section 627.48, Florida Statutes, was in effect at the time of the settlement but has since been repealed. See ch. 2023-15, §§ 11, Laws of Fla. (effective March 24, 2023). 3 FIGA was now deemed to be the insurer, it had the same obligation to pay the settlement as UPC did. She stated that FIGA had notified her it would not be honoring the settlement because it believed it did not owe attorneys’ fees pursuant to the attorney fee provision found in section 627.48, as it existed at the time of the settlement. Simmons contended that the court should enforce the full settlement against FIGA because there was no attorney fee claim being made under section 627.48. FIGA responded that it did not pay the $37,500.00 designated for Simmons’ present and former counsel and the public adjuster, contending that this part included statutory attorney’s fees which are not payable as a covered claim under section 631.54, Florida Statutes (2022). FIGA cited Petty v. Florida Insurance Guaranty Association, 80 So. 3d 313 (Fla. 2012), in which the Florida Supreme Court held that statutory attorneys’ fees are not part of the insured’s “covered claim” under the FIGA statute because they do not arise from the insolvent carrier’s insurance policy. In support of its argument, FIGA cited the mediator’s email to the parties confirming the settlement where the mediator stated: This will confirm settlement of all potential aspects of this claim in the total amount of $75,000, new money, inclusive of fees and costs . . . Settlement expressly includes the charging lien from The Diener Firm . . . I am attaching a proposed form of agreement for your very careful review and editing as you see fit. For example, feel free to play with the payees in light of the 4 charging lien as I have penciled in Diener as one of the payees on the fee check. (emphasis added). FIGA further cited the “General Release of All Claims” that Simmons signed in which she agreed to release UPC from: . . . any and all claims arising out of or related to the handling, investigation, and settlement of any claims under the Policy, whether sounding in tort or contract to include, but not be limited to, any claims under the Policy . . . related to the loss described herein and the consequences thereof. This payment is inclusive of costs; attorney fees; statutory interest; additional living expenses; taxable and nontaxable costs; any depreciation; and/or any other damages RELEASOR has claimed or may claim in the future against UPC on the subject claims. (emphasis added). At the hearing on Simmons’ motion, the court reviewed the settlement emails, the Mediation Agreement, and the General Release. Simmons argued that Petty was not controlling because in Petty, the fees in question were those that would be awarded by the trial court after the insured prevailed in a claim against the insurer; in Simmons’s case, however, the case was resolved by settlement. Simmons’s counsel asserted that there was no discussion about entitlement to fees at the mediation and that Simmons paid her own attorneys’ fees out of the lump-sum settlement. Simmons argued that there was no mention of section 627.48 in the release and that it was the parties’ intent that each side bear their own fees and costs. Simmons further explained that a portion of the $22,500.00 payable 5 to counsel’s firm included payment for Simmons’s public adjuster’s commission. FIGA’S counsel responded that Simmons was paid $37,500 and that FIGA is not a substitute insurer. It contended that under the FIGA statute, FIGA owes only “covered claims” that excludes insureds’ attorney’s fees. Counsel argued that while entitlement to section 627.428, Florida Statutes, fees is triggered by either a judgment or settlement, which is considered to be a confession of judgment, the mediation agreement apportioned the settlement between insurance benefits and attorneys’ fees, and the mediator confirmed that the settlement included Simmons’s fee claim. The trial court found that the settlement agreement was “very generic” and lump sum in nature; the breakdown was not clear regarding a statutory fee award; the public adjuster had not been paid; and the agreement did not state which part was allocated to attorney’s fees. The court found that under these “unusual circumstances and facts,” the settlement agreement should be enforced. Thus, the trial court enforced the $75,000.00 settlement agreement entered into by Simmons and UPC before UPC’s insolvency. The court entered an order granting Simmons’s motion to enforce the settlement against FIGA “for the reasons stated on the record.” FIGA moved for rehearing and/or clarification of the order, contending the court did not 6 address the issue of FIGA’S liability for interest, which FIGA is exempt from paying pursuant to section 631.57(1)(a)4.(b), Florida Statutes. The trial court granted the motion for rehearing and/or clarification and denied Simmons’ request for sanctions and interest. FIGA now appeals. STANDARD OF REVIEW The standard of review of an order compelling payment of a settlement, which includes amounts not payable as a matter of law, is de novo. Florida Ins. Guar. Ass’n v. Reyes, 303 So. 3d 1248, 1251 (Fla. 2d DCA 2020). ANALYSIS FIGA contends that the trial court erred in compelling it to pay Simmons’ attorney’s fees because these fees were not part of Simmons’ “covered claim” payable by FIGA. We agree. When FIGA was substituted as the defendant in Simmons’ underlying case after UPC became insolvent, FIGA became responsible only for paying UPC’s “covered claims.” See § 631.57(1)(a)4.(b), Fla. Stat. (2022); Alessio ex rel. Estate of Garza Fla. Ins. Guar. Ass’n, 91 So. 3d 910, 913 (Fla. 2d DCA 2012). A “covered claim” means an unpaid claim, . . ., which arises out of, and is within the coverage, and not in excess of, the applicable limits of 7 an insurance policy to which this part applies, issued by an insurer, if such insurer becomes an insolvent insurer . . .” § 631.54(4), Fla. Stat. (2022). Consistent with that statutory limitation, Florida appellate courts have held that FIGA cannot be compelled to pay an insured’s attorney’s fees where the obligation arises from a post-loss settlement agreement instead of from coverage within the policy. See Florida Ins. Guar. Ass’n v. Ramos, 427 So. 3d 187 (Fla. 3d DCA 2026); Florida Ins. Guar. Ass’n v. Hintz, 2026 WL 1742205 (Fla. 4th DCA June 17, 2026); Florida Ins. Guar. Ass’n v. Waterfire Rest., LLC, 427 So. 3d 996, 999 (Fla. 4th DCA 2026); Florida Ins. Guar. Ass’n v. Cadet, 431 So. 3d 276, 278 (Fla. 4th DCA 2026); Florida Ins. Guar. Ass’n, Inc. v. Wilson, 2026 WL 1965807 (Fla. 4th DCA July 8, 2026); Florida Ins. Guar. Ass’n v. Broome, 2026 WL 1993308 (Fla. 6th DCA July 10, 2026). Under this line of authority, we are compelled to reverse. We note that decisions from this Court and the Fourth District Court of Appeal contain fact scenarios where the settlement agreements were explicit in their allocation of specific amount for attorney's fees. See, e.g., Ramos, 427 So. 3d at 190 (“[T]he settlement agreement expressly stated that $27,000 should be paid to Appellees’ attorney for attorneys’ fees and costs . . . .”); Waterfire Rest., LLC, 427 So. 3d at, 997 (“The settlement agreement and release required the insurer to issue one check for $4,000 payable to 8 Waterfire ‘for indemnity benefits under all Coverages of the POLICY,’ and another check for $3,000 payable to Waterfire's counsel 'for attorney's fees and costs.’”); Cadet, 431 So. 3d at 277 (“[I]n consideration of the sum of FIFTY THOUSAND DOLLARS AND ZERO CENTS ($50,000.00), which is broken down as follows: Twenty Two Thousand Four Hundred Ninety Six and Sixty Four Cents ($22,496.64) made payable to Steve Cadet, TD Bank, and Space Coast Credit Union; Twenty Seven Thousand Five Hundred Three Dollars and Thirty Six Cents ($27,503.36) made payable to Maranges, PLLC, Trust Account, which includes attorneys’ fees and costs, and other good and valuable consideration.”)(emphasis omitted)); Wilson, 2026 WL 1965807, at *1 (“The Insured and the insurer signed a settlement agreement and general release which provided that the settlement amount of $65,000 be paid by two checks: (1) one for $43,500 to the Insured, the mortgage company, and the public adjuster, and (2) another for $21,500 to the Insured's attorneys.” Although the settlement Simmons entered into with UPC was not as clear, it appears the $75,000 included attorney’s fees. It is undisputed that Simmons pled entitlement to section 627.48 fees in her complaint. “A general settlement will be presumed to include all existing demands between the parties, imposing on the party claiming that certain items were not included the burden of proving that fact.” Wilson, 2026 9 WL 1965807, at *2 (quoting Wade v. Wade, 63 So. 2d 184, 185 (Fla. 1953)) (emphasis in original). The settlement documents and communications in the record reinforces this presumption. In addition, Simmons’ motion to substitute the defendant and enforce the settlement agreement acknowledged that “[t]he three different checks were upon the request of Plaintiff to make it easier for them to pay their contractually owed contingent attorney's fees and costs.” The mediator’s written confirmation email stated, “This will confirm settlement of all potential aspects of this claim in the total amount of $75,000.00, new money, inclusive of fees and costs . . . . Settlement expressly includes the charging lien from The Diener Firm.”); (“[F]eel free to play with the payees in light of the charging lien as I have penciled in Diener as one of the payees on the fee check . . . .”). The mediation agreement likewise notes that “Settlement includes the charging lien from The Diener Firm.” Thus, the check allocated to the Denier Law Firm for $15,000 clearly was for attorney’s fees. At the hearing on Simmons’ motion, her current counsel, Mr. Cankaya, admitted that part of the settlement amount was for attorney’s fees, in addition to the fees for Simmons’ public adjuster. Mr. Cankaya stated that “these checks that were issued to his firm and my firm were not just checks that the client was paying us for fees, it included other parties’ money as 10 well.” Thus, there is an admission on the record that at least part of the payment was for attorney’s fees. Simmons’ counsel’s concession, together with the email exchanges reflecting the attorneys’ fees component, confirms that at least some parts of the lump sum settlement represented attorney’s fees. Simmons’ argument that those fees may have been negotiated as part of a global settlement agreement does not alter our analysis. Where the insured has pled section 627.48 fees and the settlement includes a separate payment to the insured’s counsel or otherwise indicates an attorney’s fees component, courts have treated the fee portion as attorney’s fees for purposes of FIGA’s covered claim limitations. See Ramos, 427 So. 3d at 190 (“The Appellees’ complaint pled entitlement to attorneys’ fees pursuant to section 627.428. The parties then entered into a settlement agreement to end the litigation. And the only legal basis for the insurance company owing Appellees attorneys’ fees was section 627.428.”); Wilson, 2026 WL 1965807, at *3 (“[W]e cannot conceive of any other explanation for the separate check to the law firm, nor have the insureds provided an explanation other than the obvious - - the separate check was for attorney's fees.” (quoting Hintz, 2026 WL 1742205 *3)). 11 The trial court granted Simmons’ motion to enforce citing to “these really specific facts” and the settlement agreement’s “generic” reference to $75,000 without apportioning what amounts were to be paid to the public adjuster or current counsel. The trial court was not clear as to what portion constituted attorney’s fees and thus based its ruling on that finding. However, the absence of a clear allocation was not a basis for the trial court to enforce the settlement, and the trial court erred because FIGA cannot be forced to pay attorney's fees and costs arising from a settlement agreement where those fees and costs are not covered by the insurance policy. Waterfire Rest. LLC, 427 So. 3d at 999 (“[C]overed claims which FIGA pays must come from coverage within the policy, and not merely from a post-loss settlement agreement.”); Cadet, 431 So. 3d at 278 (“FIGA cannot be compelled to pay the portion of the settlement amount attributable to ‘attorneys’ fees and costs, and other good and valuable consideration’ because the insured has not demonstrated that it was included within the risks taken and losses protected against in the subject insurance policy.”); Broome, 2026 WL 1993308, at *1 (“[T]he . . . $35,613.31 allocated by the settlement agreement for payment of Appellees’ pre-insolvency attorney's fees must still be excluded because the attorney's fees in this case—which arise from a post-loss settlement agreement between Appellees and their former insurer as opposed to 12 coverage within the subject insurance policy—do not fall within the meaning of a covered claim under section 631.54(4), Florida Statutes (2022).”). Moreover, because Simmons sought attorneys’ fees in her complaint and moved to compel payment of the settlement, she had the burden of proof to show that the written settlement confirmation of the terms of the settlement and the general release did not include attorney’s fees – or at a minimum, that the amounts payable via the checks to counsel were not fees. In Wilson, 2026 WL 1965807 at *2, the Fourth District Court of Appeal held that since “the Insured sought attorney’s fees in his complaint[,] . . . a presumption arose that the settlement agreement included attorneys’ fees,” citing to Wade, 63 So. 2d at 185. The Wilson Court went on to hold that “the Insured had the burden to show that the settlement amount did not include attorneys’ fees, and the Insured failed to meet that burden.” Wilson, 2026 WL 1965807 at *3 (citing to Wade, supra). Here, the mediator’s confirmation email, the charging lien references, the multiple check structure, and counsel’s admission at the hearing all point otherwise. CONCLUSION The trial court erred in granting Simmons’ motion to enforce to the extent it required FIGA to pay attorney’s fees and costs that are not within 13 the coverage of the insurance policy and are thus not covered claims under section 631.54(4), Florida Statutes. We reverse and remand for an evidentiary hearing to determine whether any portion of the payments to the attorneys was for attorney’s fees and if any such payments were not for attorney’s fees, to determine whether those portions were payments that resulted from coverage provided by the insurance contract. 2 Reversed and remanded with instructions. 2 Our opinion should not be construed as having any preclusive impact on any contingency arrangement between the insured and her counsel. 14