421 F2d 187 Coblentz Dbn Coblentz v. American Surety Company of New York

421 F.2d 187

Ralph E. COBLENTZ, as Administrator D.B.N. of the Estate of Edward Thomas COBLENTZ, Deceased, Appellant,
v.
AMERICAN SURETY COMPANY OF NEW YORK, Appellee.

No. 25793.

United States Court of Appeals Fifth Circuit.

December 15, 1969.

Larry S. Stewart, Frates, Fay, Floyd & Pearson, Miami, Fla., for appellant.

Robert G. Young, James E. Tribble, Blackwell, Walker & Gray, Miami, Fla., for appellee.

Before WISDOM, GODBOLD and SIMPSON, Circuit Judges.

PER CURIAM:

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1

The appellant, RALPH E. COBLENTZ, moves this Court to enter an appropriate order with reference to attorney fees and to include in the allowance of costs a provision for costs arising from the first appeal of this cause.

2

Attorney fees in this case are requested pursuant to Fla.Stat. 627.0127, F.S.A. That statute provides for allowance of attorney fees in all cases involving insurance policies for both trial and appellate attorney fees. This Circuit has stated that the statute applies to cases decided by the courts of the United States to the same extent that it applies to cases decided by the courts of Florida. Lumbermens Mut. Cas. Co. v. Renuart-Bailey-Cheely Lumber & Supply Co., 5 Cir. 1968, 392 F.2d 556.

3

The motion to award attorney fees and costs to the appellant on this appeal is granted. See Caplan v. Johnson (Underwriter's at Lloyds, London), 5 Cir. 1969, 414 F.2d 615 (June 19, 1969); Johnson v. Atlantic National Ins. Co., Fla.App., 1964, 163 So.2d 340, cert. denied 188 So.2d 314; James Furniture Manuf. Co. v. Maryland Cas. Co., Fla.App., 1959, 114 So.2d 722.

4

The appellant makes the appealing argument that he is also entitled to attorney fees and costs for the unsuccessful prior appeal, American Surety Company of New York v. Coblentz, 5 Cir. 1967, 381 F.2d 185, because by our reversal on this second appeal the appellant has received a final judgment in his favor. If the right to attorneys' fees exists, it is by reason of the statute and not otherwise. We cannot read into the statute any authority to award fees and costs for the prior appeal. To that extent the motion is denied.

5

The Clerk of this Court is directed to fix attorney fees in the amount of $3,000 and costs in the amount of $1,123.95 to the appellant, Ralph E. Coblentz, in connection with the instant appeal.