The full case caption appears at the
end of this opinion. PER CURIAM. We have before us the opinions in Aetna Casualty & Surety Co. v. Hubbel,704 So.2d 1141 (Fla. 5th DCA 1998), and Aetna Casualty & Surety Co. v. Herbert,706 So.2d 417 (Fla. 5th DCA 1998), which we have consolidated forpurposes of review. In these cases, the Fifth District Court of Appeal concludedthat, in an action alleging a motor vehicle dealer’s violation of Chapter 501, Part II,Florida Statutes, Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA),attorney’s fees could not be recovered from a surety bond that does not provide forsuch fees. In so holding, the district court certified conflict with Marshall v. W & LEnterprises Corp., 360 So.2d 1147 (Fla. 1st DCA 1978), in which the First DistrictCourt of Appeal concluded that the surety for a mobile home dealer was liable forattorney’s fees incurred by the plaintiffs who successfully established that the dealerviolated FDUTPA. We have jurisdiction. Art. V, � 3(b)(4), Fla. Const. For thereasons expressed, we approve the result of the district court’s decisions in thesecases and we disapprove Marshall. The facts of these two consolidated cases are set forth below. HUBBEL Kathryn Hubbel filed a claim for $345.00 against a motor vehicle dealeralleging fraud and deceptive trade practices. She also sought recovery under the$25,000 surety bond issued to the dealer by Aetna Casualty & Surety Company(Aetna) under section 320.27(10), Florida Statutes (1997). After the dealerdefaulted and a default judgment was entered, Hubbel filed a demand for judgmentagainst Aetna for $345.00, which Aetna paid. The county court subsequentlygranted attorney’s fees against the dealer and Aetna in favor of Hubbel in the amountof $10,000. Aetna appealed the award of attorney’s fees, and the circuit courtaffirmed the county court order. The circuit court held that the attorney’s feeprovision of FDUTPA was incorporated in section 320.27(10), the statute thatrequires motor vehicle dealers to post a surety bond or to obtain a letter of credit tocover consumer losses. In doing so, the circuit court relied on Marshall.The district court quashed the circuit court’s affirmance of the county court’saward of attorney’s fees. See Hubbel. First, the district court stated that Aetna’ssurety bond did not contain a provision for an award of attorney’s fees. Next, thedistrict court stated that the attorney’s fee provision in FDUTPA does not apply to asurety bond action under chapter 320. The district court noted, however, that theFirst District, in Marshall, had reached a contrary conclusion under a nearlyidentical statute. HERBERT C. B. and Annie Herbert filed a claim in county court against a motor vehicledealer and its surety, Aetna, charging the dealer with violations of chapter 320,which also constituted deceptive trade practices under FDUTPA. The surety bondwas provided to the dealer pursuant to section 320.27(10). At a non-jury trial, thedealer was found to have engaged in unfair and deceptive trade practices and thetrial court awarded $33.77 in damages. The county court then awarded attorney’sfees against the dealer and Aetna in the amount of $11,550, which Aetna appealed.The circuit court affirmed the award, but the Fifth District summarily quashed thecircuit court’s affirmance, citing to its decision in Hubbel. See Herbert. Attorney’s Fees Under Section 320.27(10) Petitioners Hubbel and Herbert argue that the loss covered by a motor vehicledealer’s bond includes attorney’s fees because section 320.27(10) requires the bondto cover “any loss or damage” of a dealer’s customer and because the attorney’s feeprovision under FDUTPA is incorporated into chapter 320. They assert that publicpolicy dictates such a finding because both chapter 320 and FDUTPA weredesigned to protect consumers and to make them whole. Alternatively, petitioners,for the first time, argue that attorney’s fees should be awarded under section627.428, Florida Statutes (1997), because this Court recently concluded in Nicholsv. Preferred National Insurance Co., 704 So.2d 1371 (Fla. 1997), that attorney’s feesare proper against surety companies under that provision. That claim was not madein the trial court or before the district court of appeal. The statements of claims in these cases specifically alleged fraud andintentional misrepresentation and deceptive and unfair trade practices against themotor vehicle dealers under FDUTPA. Section 501.2105, Florida Statutes (1997), apart of FDUTPA, provides for attorney’s fees for the prevailing party in such anaction. However, the statute in issue in this proceeding is section 320.27(10) andthe bond provisions directed by the state agency to implement that statute. Itrequires motor vehicle dealers to obtain surety bonds or an irrevocable letter ofcredit in the amount of $25,000 prior to obtaining a license. Under that provision,”[s]uch bonds and letters of credit shall be to the department and in favor of anyperson . . . who shall suffer any loss as a result of any violation of the conditionshereinabove contained.” The “hereinabove contained” language refers to thefollowing condition language: “Surety bonds and irrevocable letters of credit shallbe in a form to be approved by the department and shall be conditioned that themotor vehicle dealer shall comply with the conditions of any written contract madeby such dealer in connection with the sale or exchange of any motor vehicle andshall not violate any of the provisions of chapter 319 and [chapter 320] in theconduct of the business for which the dealer is licensed.”
[FOOTNOTE 1] The issue is whether attorney’s fees are to be considered “any loss” undersection 320.27(10). The court in Marshall addressed a similar issue as it applied toan earlier version of a related statute, section 320.77, which is the statute governingsurety bonds for mobile home dealers. In Marshall, the court concluded that section320.77 included attorney’s fees provided for under FDUTPA because the referencein section 320.77 to “any loss” applied to any “violation of any provision of [section320.77] or of any other law of this state having to do with dealing in mobile homes.”The Marshall court concluded that a violation of FDUTPA was obviously aviolation of a law of this state and accordingly included attorney’s fees under theterm “any loss.” The court also noted that
[t]he obvious purpose of the “Little FTC Act” is to makeconsumers whole for losses caused by fraudulentconsumer practices. Similarly, the purpose of the bondingand licensing requirements in chapter 320 is protection ofconsumers who deal with mobile home dealers. Theseaims are not served if attorney’s fees are not included inthe protection.
360 So.2d at 1148. We find the Marshall court’s partial reliance on the “any other law” languagefound in section 320.77(10), Florida Statutes (1975), misplaced. That languagepertained only to the suspension or revocation of a mobile home dealer’s license,and not the provision for a surety bond found in section 320.77(11). That same”any other law” language is similarly confined in the licensing provision of thestatutory scheme we consider today.[FOOTNOTE 2] Further, like the statutory bond provision at issue in Marshall, the statute inthis case states that “any loss” applies to “the conditions of any written contract”made by the dealer during a sale and to any violations of chapters 319 and 320. [FOOTNOTE 3] Itdoes not extend to violations of “any law of the state.” Generally, the law is clearthat attorney’s fees are not considered to be a “loss” or damages, and to berecoverable must be expressly provided for by statute, rule, or contract. The writtencontract in this case, the surety bond, does not contain a provision for attorney’sfees. Nor does the complaint assert any violations of chapters 319 and 320.[FOOTNOTE 4] Mostimportant, there is no provision for attorney’s fees in section 320.27(10). Whilechapter 320 does contain provisions for attorney’s fees elsewhere, see, e.g. � �320.697, 320.8245, 320.838, Fla. Stat. (1997), it does not contain such a provisionin section 320.27(10). We conclude that under the plain language of the statute, attorney’s fees arenot included under the statutory scheme set forth in section 320.27(10); accordingly,we disapprove Marshall. Next, we find the asserted public policy concerns are not justifiable andwould effectively destroy the statutory scheme which establishes a modest fund forconsumers to obtain a refund of their monies. As illustrated by the facts in this case,to accept the view of the petitioners would mean the primary beneficiary of the fundwould be the attorneys, not the consuming public. The legislative scheme wasintended to establish a very modest fund of $25,000 from which consumers couldrecover damages when car dealers went out of business and defaulted in theirobligations. The Hubbel case is an illustration of the type of claim that was intendedto be protected. Once the default was entered and the validity of the claimestablished, which easily could have been done in a small claims proceeding, thejudgment was immediately paid by the surety. If we accepted the arguments of theclaimants in this case, logic and commonsense necessarily lead to the conclusionthat the asserted judicial construction would result in the attorney’s fee provisionssubstantially depleting the fund. The applicable statute, section 320.27(10), by itsclear terms, states “the aggregate liability of the surety in any one year shall in noevent exceed the sum of the bond, or in the case of a letter of credit, the aggregateliability or the issuing bank shall not exceed the sum of the credit.” If the obligationwas as open-ended as asserted by the claimants, few sureties and no banks wouldprovide the bond or letter of credit to make this statutory scheme work. We reject petititioner’s claim in this Court based upon Nichols v. PreferredNational Insurance Co., 704 So.2d 1371 (Fla. 1997). That case interpreted theprovisions of section 627.428. The petitioners in the instant case failed to claimattorney’s fees under that section both at trial and on appeal. Accordingly, for the reasons expressed, we approve the result reached by thedistrict court in these cases. It is so ordered. HARDING, C.J., and SHAW, WELLS and PARIENTE, JJ., concur. LEWIS, J., concurs in part and dissents in part with an opinion, in whichANSTEAD, J., concurs. NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IFFILED, DETERMINED. LEWIS, J., concurring in part and dissenting in part. I concur with the majority’s determination that neither Kathryn Hubbel(Hubbel) nor C.B. and Annie Herbert (the Herberts) may recover attorney’s feesfrom Aetna Casualty and Surety Company (Aetna) under section 627.428(1),Florida Statutes (1999),[FOOTNOTE 5] only because the allegations in the complaints werespecifically limited to a different statute and the claims were not presented ingeneral terms or under section 627.428 in any of the proceedings below. Based onthe specific facts of the present cases, however, I respectfully dissent from themajority’s determination that costs and attorney’s fees included in the judgments infavor of Hubbel and the Herberts as elements of recoverable loss under the lawapplicable to these facts do not constitute “any loss” as those words are utilized insection 320.27(10), Florida Statutes (1999).[FOOTNOTE 6] In my view, the majority’sdetermination on this issue has been tainted, and unfortunately misdirected, by adistaste for the amount of attorney’s fees awarded to Hubbel and the Herberts at thetrial level, despite the fact that the validity of such amounts has not been challengedin this Court and has never been an issue before this Court for consideration.[FOOTNOTE 7] In a similar manner and contrary to the majority’s analysis, the face amount of the suretybond does not in any way address the definition of the phrase “any loss” for whichbonds or letters of credit are required to respond. Contrary to the majority’sdetermination, I conclude that the plain meaning of section 320.27(10) — which is alsosupported by public policy — requires that when a motor vehicle dealer fails tocomply with the conditions of a written contract (such as a refusal to refund adeposit as occurred in one of these cases) and the conduct is so egregious that it isan unfair and deceptive trade practice under chapter 501, Florida Statutes (1999),for which Florida law describes the elements of loss recoverable to include costsand attorney’s fees, the elements of loss as described by statute are or should becovered by the surety bond provided pursuant to section 320.27(10)(a). The plainmeaning of the statute requires such bonds to respond to “any loss” as thoseelements are established by Florida law. To understand the basis for thisconclusion, a brief review of the facts is necessary. I. FACTS IN THE PRESENT CASES A. HUBBEL’S CASE Hubbel filed an action in county court against a motor vehicle dealer, allegingfraud and deceptive trade practices under the Florida Deceptive and Unfair TradePractices Act (the FDUTPA). She specifically alleged, among other things, that themotor vehicle dealer had failed to refund a $500 deposit to her in accordance with awritten contract executed by the parties, and she also sought recovery under thesurety bond issued by Aetna pursuant to section 320.27(10). Aetna ultimately paidan amount set forth by Hubbel in a demand for judgment, and the trial courtdetermined that Hubbel was entitled to recover from the dealer and Aetna, jointlyand severally, attorney’s fees, costs, and prejudgment interest under the lawapplicable to the action. On appeal in the circuit court, Aetna did not contest the award of costs orprejudgment interest, but instead contested only the award of attorney’s fees.Further, Aetna did not challenge the amount of attorney’s fees awarded to Hubbel,but argued only that there was no basis for recovery of the attorney’s fees portion ofthe judgment from Aetna under the surety bond. The circuit court, in its appellatecapacity, held that the attorney’s fees element of loss as provided to a prevailingparty under section 501.2105, Florida Statutes (1999), which is part of theFDUTPA, was incorporated into section 320.27(10), the statute requiring motorvehicle dealers to annually post a surety bond, and, therefore, Hubbel was entitled torecover attorney’s fees from the surety, Aetna. In so holding, the circuit court reliedon the First District’s decision in Marshall v. W & L Enterprises Corp., 360 So. 2d1147 (Fla. 1st DCA 1978). Aetna sought review of the circuit court’s determinationin the Fifth District Court of Appeal. The Fifth District quashed the circuit court’s affirmance of the county court’saward of attorney’s fees. See Aetna Cas. & Sur. Co. v. Hubbel, 704 So. 2d 1141,1142 (Fla. 5th DCA 1998). As the majority has determined here, the Fifth Districtheld that, in an action alleging a motor vehicle dealer’s violation of the FDUTPA,attorney’s fees may not be recovered on a surety bond that does not specificallyprovide for recovery of such fees. See id. In so holding, the Fifth District certifiedconflict with the First District’s decision in Marshall.[FOOTNOTE 8] B. THE HERBERTS’ CASE The Herberts filed an action in county court against a motor vehicle dealer,alleging violations of chapter 320, Florida Statutes (1995), which also constituteddeceptive trade practices under the FDUTPA. In the same action, the Herbertssought recovery from the motor vehicle dealer’s surety, Aetna, which had provideda surety bond under section 320.27(10). The court determined that the dealer had infact violated the terms of a written contract and engaged in unfair and deceptivetrade practices under the FDUTPA. Based upon this determination, the courtentered judgment in favor of the Herberts and also awarded costs and attorney’sfees against the dealer and Aetna, jointly and severally. On appeal to the circuit court, as in Hubbel, Aetna did not contest the awardof costs, but instead contested only the award of attorney’s fees. Unlike Hubbel,however, in the Herberts’ case, Aetna challenged both the basis for the award ofattorney’s fees and the amount awarded. After considering the parties’ arguments,the circuit court affirmed both the element of attorney’s fees and the amountawarded as losses for which Aetna was responsible. Aetna again sought review inthe Fifth District, and the court relied on its decision in Hubbel to quash the circuitcourt’s appellate decision. See Aetna Cas. & Sur. Co. v. Herbert, 706 So. 2d 417,417 (Fla. 5th DCA 1998). It is under these circumstances that the present casescome before this Court for resolution. II. ANALYSIS OF SECTION 320.27(10) AND SECTION 501.2105 A. PLAIN MEANING OF THE STATUTES Section 320.27(10)(a), Florida Statutes, requires a motor vehicle dealer topost a surety bond or obtain an irrevocable letter of credit, in the amount of$25,000, as an annual prerequisite to being licensed in Florida. The amount of thebond or letter of credit has not increased for the last fifteen years.[FOOTNOTE 9] The bond or letter of credit is issued “in favor of any person in a retail or wholesale transactionwho shall suffer any loss as a result of any violation of the conditions hereinabovecontained.” � 320.27(10)(b), Fla. Stat. (1999) (emphasis added). The phrase”hereinabove contained” refers to the following statutory language:
Surety bonds and irrevocable letters of credit shallbe . . . conditioned that the motor vehicle dealer shallcomply with the conditions of any written contract madeby such dealer in connection with the sale or exchange ofany motor vehicle and shall not violate any of theprovisions of chapter 319 and this chapter [chapter 320] inthe conduct of the business for which the dealer islicensed.
Id. (emphasis added). The provisions of the surety bonds issued by Aetna in thecases here are those required by section 320.27(10)(b), and the bonds aresubstantively identical to each other. There is no substantive difference between theterms of this statutory bonding provision and those of section 320.77(11), whichwere considered, analyzed, and applied by the Marshall court. Section 501.2105(1), Florida Statutes, provides that the prevailing party incivil litigation resulting from a violation of the FDUTPA may recover reasonableattorney’s fees and costs as elements of loss from the nonprevailing party in suchlitigation. Section 501.2105(4), Florida Statutes, provides, “Any award ofattorney’s fees or costs shall become part of the judgment and subject to executionas the law allows.” Based on the plain language of sections 320.27(10) and 501.2105, severalmatters are clear. First, before one may seek recovery under a surety bond orirrevocable letter of credit pursuant to section 320.27(10), a motor vehicle dealermust (1) violate the conditions of a written contract for the sale or exchange of amotor vehicle; or (2) violate any provision contained in chapters 319 or 320 of theFlorida Statutes. Second, if the motor vehicle dealer violates a written contract or astatutory provision of chapters 319 or 320, the bond or letter of credit issuedpursuant to section 320.27(10) shall cover “any loss” resulting therefrom. Finally,according to section 501.2105, the prevailing party on a claim under the FDUTPAmay recover reasonable attorney’s fees and costs as elements of loss from thenonprevailing party.[FOOTNOTE 10] Based on these clear representations of legislative intent fromthe words utilized, as well as the particular facts of these cases, I conclude that thephrase “any loss” includes the elements of attorney’s fees and costs as provided bystatute and included as part of the judgment against a dealer.[FOOTNOTE 11] In Hubbel’s case and the Herberts’ case, the motor vehicle dealers violated atleast one of the conditions set forth in section 320.27(10) and, correspondingly, oneof the provisions set forth in the surety bonds issued by Aetna became applicable.Specifically, as established by the trial court’s entry of a judgment against the motorvehicle dealer in Hubbel’s case, see, e.g., Ellish v. Richard, 622 So. 2d 1154, 1155(Fla. 4th DCA 1993) (recognizing that the party against whom a default judgment isentered admits all well-pleaded factual allegations as true), the dealer failed torefund a deposit to Hubbel in accordance with a written contract executed by theparties, which would constitute a breach of a written contract for the sale orexchange of a motor vehicle. In a similar manner, in the Herberts’ case, the trialcourt specifically found that the dealer failed to comply with the conditions of awritten contract for the sale or exchange of a motor vehicle. Tellingly, Aetna hasnot contested its underlying liability on the bonds issued to the dealers in the caseshere, but instead has contested only its liability for the element of attorney’s fees.Thus, it is clear that the motor vehicle dealers subject to the judgments violated atleast one of the conditions set forth in section 320.27(10), and the bonds issued byAetna became applicable.[FOOTNOTE 12] Therefore, Aetna should now be required to respond for”any loss” suffered by Hubbel and the Herberts as a result of the dealers’misconduct. I conclude that, in these cases, the term “any loss” as utilized in the statutewe are considering includes attorney’s fees and costs awarded by the trial court inthe judgments to both Hubbel and the Herberts because the Legislature hasestablished such items as elements of recoverable loss under these factualcircumstances. In Hubbel’s case and the Herberts’ case, the dealers’ misconductconstituted not only a violation of a written contract, but also an unfair anddeceptive trade practice as defined by Florida law in violation of the FDUTPA. Insuch circumstances, when a violation of one of the conditions contained in section320.27(10) occurs and such conduct is egregious to the extent to be subject to theFDUTPA, and attorney’s fees and costs are established as recoverable losses underthat chapter, those fees and costs constitute part of “any loss” as defined by law andare recoverable by the beneficiary of the bond. The Legislature has established inthe FDUTPA that attorney’s fees and costs are items of recoverable loss to beincluded in the judgment when such violations occur. A Colorado court recently addressed a similar issue in Edmonds v. WesternSurety Co., 962 P.2d 323 (Colo. Ct. App. 1998), in which a consumer sued a motorvehicle dealer because the dealer had issued him a check for $10,400, which hadbeen dishonored twice. See 962 P.2d at 325. The action against the dealer wasbased upon a statute which permitted recovery of damages for checks not paid uponpresentment, and the statute allowed the prevailing party to recover attorney’s feesand costs as elements of recoverable loss. See id. at 325, 328. The judgmentobtained by the plaintiff against the dealer included attorney’s fees and costs, andwhen the dealer did not satisfy the judgment, the plaintiff sought recovery from thesurety company that had issued a $30,000 bond to the dealer under a statute similarto section 320.27(10). See id. at 325. Specifically, the statute stated that the bondwas to “provide for the reimbursement for ‘any loss or damage suffered by anyretail consumer.’” Id. at 328 (quoting section 12-6-111(2)(a), Colorado RevisedStatutes (1997)). The trial court did not reach the issue concerning attorney’s fees and costs,but the Edmonds court addressed the surety’s claim that it was not liable for thoseelements of loss. See 962 P.2d at 327-28. In finding the surety responsible underthe bond for the payment of those portions of the judgment for attorney’s fees andcosts, the court reasoned:
As a general rule, in the absence of a statute, courtrule, or private contract to the contrary, attorney fees arenot recoverable by the prevailing party in either a contractor tort action. This reasoning is based on the Americanrule, which requires each party in a lawsuit to bear its ownlegal expenses. Bernhard v. Farmers Insurance Exchange,915 P. 2d 1285 (Colo. 1996). Section 13-21-109, C.R.S. 1997, under whichEdmonds recovered the judgment against [the motorvehicle dealer], provides that: “In any civil action broughtunder this section, the prevailing party may recover courtcosts and reasonable attorney fees.” This languageundoubtedly imposes liability on the maker of adishonored check for the holder’s attorney fees expendedin pursuit of the damage award. See The Group, Inc. v.Spanier, [940 P.2d 1120 (Colo. Ct. App. 1997)]. Indeed,the trial court here awarded attorney fees and costs infavor of Edmonds against [the motor vehicle dealer].However, � 13-21-109 does not address secondaryobligations. As noted previously, the bond terms require suretyto indemnify Edmonds for “any loss suffered,” and�12-6-111(2)(a) states that the purpose of the bond is toprovide for the reimbursement for “any loss or damagesuffered by any retail consumer.” It is true, as surety argues, that costs and attorneyfees are not ordinarily damages or losses that are sufferedas a direct result of the conduct of the principal obligor.See Ferris v. Haymore, [967 F.2d 946 (4th Cir. 1992)](attorney fees and costs recovered against principalobligor not recoverable as “loss or damages suffered”under bond); Knecht, Inc. v. United Pacific Insurance Co.,860 F. 2d 74 (3d Cir. 1988) (attorney fees not recoverableon bonds which provide that claimants can sue for sums”as may be justly due”). However when, as here, a statute expresslyauthorizes the recovery of attorney fees against theprincipal obligor on the underlying claim, such sumsqualify as a “loss suffered” within the meaning of thebond terms.
Edmonds, 962 P.2d at 328. I agree with the court’s analysis in Edmonds andbelieve it to be sound and reasonable in application. Further, it is well settled in Florida that the liability of a surety is coextensivewith that of the principal, see American Home Assurance Co. v. Larkin GeneralHospital, Ltd., 593 So. 2d 195, 198 (Fla. 1992) (citing Cone v. Benjamin, 150 Fla.419, 8 So. 2d 476 (1942), and National Union Fire Ins. Co. v. Robuck, 203 So. 2d204 (Fla. 1st DCA 1967), with the caveat that the surety’s liability is limited by theterms of the bond. See American Home, 593 So. 2d at 198. Holding Aetnaresponsible for attorney’s fees and costs as part of the judgment based on thespecific facts involved in Hubbel’s case and the Herberts’ case would not becontrary to these well-settled principles of law. The motor vehicle dealers inquestion here are responsible to Hubbel and the Herberts for payment of attorney’sfees and costs under the judgments as provided in section 501.2105, and holdingAetna coextensively responsible for those fees and costs would not violate the termsof the surety bonds or statute because, under the bonds, Aetna is responsible for”any loss” resulting from the dealers’ violations of the conditions enumerated insection 320.27(10). Accordingly, based on the above, I conclude that the plainmeaning of sections 320.27(10) and 510.2105 render Aetna responsible forattorney’s fees and costs in the cases here. I would approve the decision inMarshall and quash the decisions below.[FOOTNOTE 13] B. PUBLIC POLICY In my view, the flow of the majority opinion evidences that its determinationof the issue presented has been poisoned by a distaste for the amount of attorney’sfees awarded to Hubbel and the Herberts at the trial level, even though there is noissue before this Court as to the amounts determined proper by the trial courts. Theeffect of this misdirection surfaces in the majority’s public policy discussion, inwhich the majority asserts that allowing attorney’s fees to be recoverable in thepresent cases “would mean the primary beneficiary of the fund would be theattorneys, not the consuming public.” Majority op. at 9. I disagree. I fear that the majority view fails to accommodate the dominant purpose andpractical application of the licensing and bonding requirements for those engaged inthe business of buying, selling, or dealing in motor vehicles in Florida. Contrary tothe majority view, the amount of the surety bond or letter of credit does not in anyway speak to the issue of the elements of “any loss” or recovery for which thesecurity is required to respond. I would conclude that our public policy mustrecognize that transportation is a virtual necessity for Florida’s working familiesand, more likely than not, the occasions when this type of security will be calledupon to respond will involve marginal business operations dealing in lower-qualityproducts. This type of business tends to economically abuse customers of limitedeconomic power. It is precisely this segment of our population that has the leasteconomic ability to withstand the loss and the most need for, but inability toindependently obtain, proper legal counsel that will find themselves involved indisputes such as these. Those facing such circumstances require knowledge of theavailable legal remedy to even access the surety bonds or letters of credits when theconduct is the violation of a written contract and not a separate chapter 319 or 320violation.[FOOTNOTE 14] If Florida’s families do not have access to competent legal counsel when the contract violation is so egregious as to constitute an unfair and deceptivepractice as defined by our law, the available remedy designed to protect theseindividuals, the security, becomes effectively insulated from accomplishing the verypurpose for which it was originally intended. I suggest that it is through thiswindow of public policy that the statute at issue must be viewed when we considerand apply the extent to which the bonds provide protection to Florida’s familieswhen chapter 320, Florida Statutes, does not provide a definition of the term “anyloss”. I also take issue with the majority’s inclusion of a “fear factor” and”doomsday” suggestion that few sureties and no banks would provide bonds orletters of credit to make the statutory scheme work if the obligation was “open-endedas asserted by the claimants.” Majority op. at 10. First, the claimants herecandidly admitted during oral argument that the exposure of the surety under theterms of section 320.27(10) for the judgment against the principal (dealer) is notopen-ended and is limited to the facial amount of the bond issued. Second, suretiesand banks are not only paid premiums and fees for such services, they also have theeconomic leverage to have collateral or security requirements in place to protectagainst payments of a loss. Third, the obligation of a surety to respond is generallycoextensive with the liability of the principal within the terms of the bond. III. ANALYSIS OF SECTION 627.428(1) Hubbel and the Herberts alternatively claim entitlement to attorney’s feesunder section 627.428(1), Florida Statutes, because this Court recently concluded inNichols v. Preferred National Insurance Co., 704 So. 2d 1371, 1373 (Fla. 1997),that attorney’s fees may be recovered from surety companies under that statutoryprovision. I would agree with this alternative position had it been properlypresented in the courts below. In Nichols, this Court found that section 627.428(1) applies to suretiesbecause a surety is considered an “insurer” as used in that statutory subsection. SeeNichols, 704 So. 2d at 1373 (relying on the definition of “insurer” set forth insection 624.03, Florida Statutes (1995)). Although Nichols involved a surety on aguardianship bond, this Court disapproved Dealers Insurance Co. v. CentennialCasualty Co., 644 So. 2d 571 (Fla. 5th DCA 1994), which involved a surety on amotor vehicle dealer bond under section 320.27(10), “to the extent that [Dealers]holds that section 627.428 does not apply to sureties.” Nichols, 704 So. 2d at 1374.In fact, this Court has consistently applied section 627.428, Florida Statutes, in thesurety context. See Danis Indus. Corp. v. Ground Improvement Techniques, Inc.,645 So. 2d 420 (Fla. 1994); Insurance Co. of North America v. Acousti Eng’g Co.of Florida, 579 So. 2d 77 (Fla. 1991), receded from on other grounds by TurnberryAssocs. v. Service Station Aid, Inc., 651 So. 2d 1173 (Fla. 1995). The apparentpublic policy underlying section 627.428 is to discourage insurers, includingsureties, from contesting valid claims and to reimburse those forced into litigation toenforce their rights. See, e.g., Bell v. U.S.B. Acquisition Co., 734 So. 2d 403, 410n.10 (Fla. 1999); State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830, 833 (Fla.1993). Since this claim was not preserved in any lower court and the allegations inthe complaints for fees were specifically stated to be based upon a different statute,I agree with the majority view that section 627.428(1), Florida Statutes, cannot nowbe applied in the cases here. ANSTEAD, J., concurs. :::FOOTNOTES::: FN1 Section 320.27(10) provides in full as follows: (10) SURETY BOND OR IRREVOCABLE LETTER OF CREDITREQUIRED.– (a) Annually, before any license shall be issued to a motor vehicle dealer,the applicant-dealer of new or used motor vehicles shall deliver to the departmenta good and sufficient surety bond or irrevocable letter of credit, executed by theapplicant-dealer as principal, in the sum of $25,000. (b) Surety bonds and irrevocable letters of credit shall be in a form to beapproved by the department and shall be conditioned that the motor vehicle dealershall comply with the conditions of any written contract made by such dealer inconnection with the sale or exchange of any motor vehicle and shall not violate anyof the provisions of chapter 319 and this chapter in the conduct of the business forwhich the dealer is licensed. Such bonds and letters of credit shall be to thedepartment and in favor of any person in a retail or wholesale transaction who shallsuffer any loss as a result of any violation of the conditions hereinabove contained.When the department determines that a person has incurred a loss as a result of aviolation of chapter 319 or this chapter, it shall notify the person in writing of theexistence of the bond or letter of credit. Such bonds and letters of credit shall befor the license period, and a new bond or letter of credit or a proper continuationcertificate shall be delivered to the department at the beginning of each licenseperiod. However, the aggregate liability of the surety in any one year shall in noevent exceed the sum of the bond or, in the case of a letter of credit, the aggregateliability of the issuing bank shall not exceed the sum of the credit. (c) Surety bonds shall be executed by a surety company authorized to dobusiness in the state as surety, and irrevocable letters of credit shall be issued by abank authorized to do business in the state as a bank. (d) Irrevocable letters of credit shall be engaged by a bank as an agreementto honor demands for payment as specified in this section. (e) The department shall, upon denial, suspension, or revocation of anylicense, notify the surety company of the licensee, or bank issuing an irrevocableletter of credit for the licensee, in writing, that the license has been denied,suspended, or revoked and shall state the reason for such denial, suspension, orrevocation. (f) Any surety company which pays any claim against the bond of anylicensee or any bank which honors a demand for payment as a condition specifiedin a letter of credit of a licensee shall notify the department in writing that suchaction has been taken and shall state the amount of the claim or payment. (g) Any surety company which cancels the bond of any licensee or anybank which cancels an irrevocable letter of credit shall notify the department inwriting of such cancellation, giving reason for the cancellation. FN2 Section320.27(9) provides in pertinent part: (9) DENIAL, SUSPENSION, OR REVOCATION.– The department may deny, suspend, or revoke any license issued hereunder or under theprovisions of s. 320.77 or s. 320.771, upon proof that a licensee has failed to comply withany of the following provisions with sufficient frequency so as to establish a pattern ofwrongdoing on the part of the of the licensee: (a) Willful violation of any other law of this state, including chapter 319, thischapter, or ss. 559.901-559.9221, which has to do with dealing in or repairing motorvehicles or mobile homes or willful failure to comply with any administrative rulepromulgated by the department. FN3 The surety bond provision applicable in Marshall provided the following, in pertinentpart: The bond shall be in a form to be approved by the department, and shall be conditionedupon the mobile home dealer’s complying with the conditions of any written contractmade by him in connection with the sale or exchange of any mobile home or recreationalvehicle and his not violating any of the provisions of chapters 319 and 320 in the conductof the business for which he is licensed. The bond shall be to the department and in favorof any person who shall suffer any loss as a result of any violation of the conditionshereinabove contained. � 320.77(11), Fla. Stat. (1975). FN4 Petitioners do contend that there were violations of section 320.27(9) because thatsubsection allows for the revocation of a dealer’s license if the dealer willfully engages in a patternof fraud. On the facts before us, however, no “pattern” of fraud has been established. FN5 The current version of section 627.428(1), Florida Statutes, is cited here because it isidentical to the last three versions. Compare � 627.428(1), Fla. Stat. (1999), with � 627.428(1),Fla. Stat. (1997); � 627.428(1), Fla. Stat. (1995); and � 627.428(1), Fla. Stat. (1993). FN6 The current version of section 320.27(10), Florida Statutes, is cited here because it hasundergone only one minor revision since the operative facts in the present cases occurred in Apriland May of 1995. See Ch. 95-148, � 916, at 1409-10, Laws of Fla. (making gender-specificlanguage gender-neutral). FN7 We do not even have a transcript of any proceedings which involved a factualdetermination of the amount of any attorney’s fees awarded. FN8 The Fifth District was correct to certify conflict with the First District’s decision inMarshall, as the statutory language at issue here is nearly identical to the statutory language atissue in Marshall. Compare � 320.77(10)-(11), Fla. Stat. (1975), with � 320.27(9)-(10), Fla. Stat.(1995); see also Majority op. at 3, 6-8. FN9 Compare � 320.27(10), Fla. Stat. (1999), with Ch. 85-176, � 4, at 1234, Laws of Fla. FN10 Prior to 1994, the prevailing party in civil litigation brought under the FDUTPA wasmandatorily entitled to recover reasonable attorney’s fees and costs from the nonprevailing party.See � 510.2105, Florida Statutes (1993). The Legislature amended section 501.2105 in 1994 toplace an award of such fees and costs within the discretion of the trial court. See Ch. 94-298, � 4,at 2064, Laws of Fla.; see also � 501.2105, Fla. Stat. (Supp. 1994). This statutory change,however, should not alter the result in situations such as those in the present cases, where the trialcourt actually awards attorney’s fees and costs. In such situations, the attorney’s fees and costsbecome part of the judgment recoverable by the prevailing party, and are subject to execution.See � 501.2105(4), Fla. Stat. (1999). FN11 Aetna does not argue here, nor has it argued in any of the proceedings below, that costsdo not constitute part of “any loss” as that term is used in section 320.27(10) and surety bonds orletters of credit issued pursuant to that statutory subsection. Likewise, in its opinion, the majoritydoes not address the issue of costs. It is clear, however, that under the reasoning set forth in themajority opinion, costs would not be considered part of “any loss” because neither section320.27(10) nor surety bonds or letters of credit issued pursuant to that statutory subsectionmention costs. Similar to the situation with attorney’s fees, however, I conclude that costs arerecoverable as “any loss” under circumstances such as those presented in the cases here. FN12 I agree in concept with Aetna and the majority that the facts in the present cases do notestablish a violation of an express provision of chapter 319 or chapter 320. However, violation ofthe FDUTPA is also a technical violation of section 320.27(9)(a), Florida Statutes. Further, theexistence or absence of a chapter 319 or chapter 320 violation does not terminate the analysis. FN13 I would also disapprove Dealers Insurance Co. v. Centennial Casualty Co., 644 So. 2d571 (Fla. 5th DCA 1994), review denied, 658 So. 2d 989 (Fla. 1995), disapproved on othergrounds by Nichols v. Preferred National Insurance Co., 704 So. 2d 1371 (Fla. 1997), on theadditional basis that the Fifth District found the surety company that issued a bond pursuant tosection 320.27(10) not liable for attorney’s fees, despite the fact that the underlying contractbreached by the motor vehicle dealer expressly provided for the recovery of such fees. FN14 The Department of Highway Safety and Motor Vehicles notifies a consumer of theexistence of a bond or letter of credit if it determines that a loss has occurred due to a violation ofchapters 319 or 320, Florida Statutes. See � 320.27(10)(b), Fla. Stat. (1999). However, there is no similar notice if a loss results from a violation of a written contract, as occurred here.
Hubbel v. Aetna Casualty & Surety, Co. Supreme Court of Florida Nos. SC92532 & SC92848 KATHRYN HUBBEL, Petitioner, vs. AETNA CASUALTY & SURETY COMPANY, Respondent. C. B. HERBERT, ET AL., Petitioners, vs. AETNA CASUALTY & SURETY COMPANY, Respondent. [April 20, 2000] Two Cases Consolidated: Applications for Review of the Decision of the District Court of Appeal – CertifiedDirect Conflict of Decisions Fifth District – Case Nos. 5D97-2108 & 5D97-2314(Orange County) J. Gordon Blau, Orlando, Florida, and Marcia K. Lippincott, Lake Mary, Florida, for Petitioner Kimberly A. Ashby of Maguire, Voorhis & Wells, P.A., Orlando, Florida, and James W. Sears of Sears & Manuel, P.A., Orlando, Florida, for Respondent
