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Like most states, Florida enacted a risk-shifting statute for attorneys’ fees and costs when litigants make a statutory proposal for settlement. Florida Statute § 768.79 establishes that framework for proposals for settlement (also known as offers of judgment) in civil lawsuits. The 2nd District Court of Appeal’s recent decision in Hurst v. Bell, No. 2D2025-0645 (Fla. 2d DCA July 29, 2026), offers important guidance for policyholders whenever a case proceeds past a rejected proposal for settlement: When a §768.79 fee judgment lands, is the insurer on the hook for it or does that exposure stay with the insured?

Background

Howard Mathews sued Daymon Bell for injuries from an automobile collision. Bell was insured by a Progressive Select auto liability policy with $100,000/$300,000 bodily injury limits, and Progressive tendered its $100,000 limits before suit was filed. Mathews rejected the tender and sued. Months later, Mathews served Bell with a $160,000 proposal for settlement under Florida Statute § 768.79. Bell did not accept the proposal, and the case proceeded to trial.

The jury returned a verdict for Mathews, and the trial court entered a final judgment against Bell. Because the verdict exceeded the rejected proposal, the court also entered a separate attorneys’ fee and cost judgment against Bell. Mathews’ estate then moved under Florida Statutes §627.4136(4) to add Progressive directly to that fee judgment. A general magistrate recommended granting the motion, but the circuit court sustained Progressive’s exceptions and denied joinder. The estate appealed.

The Court’s Analysis

The court affirmed, resolving the appeal entirely on the policy’s plain language. Progressive’s “Additional Payments” provision required Progressive to pay “all expenses” incurred in settling or defending a claim, but expressly excluded “attorney fees awarded or assessed against an insured person.” A separate, more general clause promised “reasonable expenses, including loss of earnings up to $200 per day, incurred at our request.” The estate argued that the general expense clause was broad enough to cover the adverse fee judgment, relying in part on the principle that “including” is ordinarily a term of enlargement rather than limitation.

The court rejected that reading. Applying the settled rule that a specific policy provision addressing a subject controls over a general provision addressing the same subject, the court held that the general expense clause could not be read to silently restore the exact category of fee liability that the specific provision expressly excluded. The illustrative example following “including,” lost earnings for attending a deposition, hearing, or trial, reinforced that the clause was aimed at ordinary cooperation costs, not adverse statutory fee awards. The court noted this reading was consistent with the policy’s separate cooperation provisions, which require the insured to “cooperate with [Progressive] in any matter concerning a claim or lawsuit” and to “attend hearings and trials as [Progressive] require[s].”

The court also rejected the argument that the policy became ambiguous merely because the fee-exclusion language appeared in the same numbered paragraph as the general expense obligation, rather than in a stand-alone exclusion. The relevant question was not one of sentence-level grammar, but whether the policy, read as a whole, reasonably allowed the general “reasonable expenses” language to cover the exact fee category that another provision in the same section expressly named and excluded. It did not. Permitting that result would have treated the general clause as an implied grant of attorneys’ fee coverage, even though the same section expressly addressed, and withheld, that category of fees.

The court distinguished the estate’s principal authorities on the same ground. In Government Employees Insurance v. Macedo, 228 So. 3d 1111 (Fla. 2017), the Florida Supreme Court found similar “expenses” and “costs” language ambiguous as applied to a § 768.79 fee award, but critically, the GEICO policy there contained no provision expressly disclaiming coverage for attorneys’ fees. Progressive’s policy did, which the court found dispositive. Macedo did not hold that every “reasonable expenses incurred at our request” clause covers an adverse fee award regardless of the surrounding policy language, and it did not resolve the antecedent coverage question presented where the policy, read as a whole, expressly excludes the fee category sought.

The court likewise distinguished a Middle District of Florida decision the estate cited, Prime Property & Casualty Insurance v. O Mendoza Trucking, Inc., 2023 WL 2162196 (M.D. Fla. Feb. 22, 2023), which found coverage where a policy’s fee exclusion appeared only in a separate court-costs subparagraph, distinct from the subparagraph providing for reasonable expenses incurred at the insurer’s request. Progressive’s policy was structured differently: The fee exclusion sat inside the same broad provision covering all settlement and defense expenses, not in an isolated court-costs clause, making the reasoning in Prime inapplicable.

Finally, the court rejected the broader premise that a split among courts construing similar policy language creates ambiguity by itself. Ambiguity, the court explained, is a feature of the specific text before the court, assessed under ordinary rules of construction, not a byproduct of other courts reaching different results under different (or even similar sounding) policy wording. Because Progressive’s policy unambiguously excluded the fee judgment at issue, § 627.4136(4) supplied no basis to join Progressive to that judgment, and the circuit court correctly denied the estate’s motion.

Why It Matters

This decision confirms that a fee judgment arising from an unaccepted proposal for settlement does not automatically obligate the insurer. Coverage turns entirely on how the policy’s expense and “additional payments” provisions are drafted, and that exposure is not confined to auto liability. Any commercial policyholder facing litigation, regardless of the line of coverage, can find itself on the wrong end of a rejected proposal if a case proceeds to a verdict outside the statutory safe harbor.

Policies with an express carve-out for adverse attorneys’ fee awards, like Progressive’s, will likely defeat an attempt to shift that liability to the insurer even where a broader expense clause exists elsewhere in the same provision. Policies that lack that express exclusion, like the GEICO policy in Macedo, may be read to cover the fee award, particularly where the insurer controlled the decision not to accept the proposal. Policyholders and coverage counsel should:

  • Review the policy’s expense provisions as soon as a proposal for settlement is served or rejected, not after a fee judgment is entered.
  • Look for an express fee exclusion. Whether the policy expressly excludes “attorney fees awarded or assessed against an insured person” is often outcome determinative.
  • Don’t assume general language covers a specific exposure. A broad “reasonable expenses” clause will not ordinarily override a more specific provision addressing the same category of fees.
  • Confirm who controls the decision. Where the insurer is deciding whether to accept a proposal, confirm in writing whether the policy will cover the resulting fee exposure if the case proceeds to verdict.

Key Takeaway

As proposals for settlement remain a routine fixture of Florida litigation, Hurst v. Bell is a reminder that fee exposure under § 768.79 will follow the specific words of the policy, not the general expectation that the insurer is responsible. Policyholders should know how their expense provisions are worded before a proposal is on the table, not after a fee judgment is entered.