Most states, including Florida, require each side in a civil lawsuit to pay its own attorneys' fees and court costs. But Florida also makes an exception if a contract between plaintiff and defendant provides for the winning party to recover court costs or the case is decided based on state law that provides for the winner to recover those costs.

Charles Comella Jr., an associate attorney at law firm Chesser & Barr, earlier this year wrote that determining the winner in a civil lawsuit isn't so simple because it often includes several different claims and its parties may win some but not others.

"It can become unclear which party should be considered the prevailing party," he wrote.

One way to collect attorneys' fees is if the plaintiff, in its initial pleading, explicitly seeks the fees and if the judge decides that one of the parties "prevailed on the most significant issue or issues," Comella wrote.

The Met Square Project Dispute

The conflict between Suffolk and Berkley involves a five-year-long dispute over payments that drywall subcontractor Titus Construction Group said it was owed on a Miami high-rise and mixed-use project called Met Square. The federal judge in July ordered Suffolk to pay Berkley $4.1 million plus $1.2 million in pre-judgement interest.

A surety that indemnifies a contractor is usually allowed to make claims for the contractor and collect any money due to it while seeking to recover its own costs.

Suffolk's attorneys described Fort Lauderdale-based Titus Construction, a framing, insulation and drywall contractor, as insolvent. 

There was no answer by ENR story posting time to calls to its Fort Lauderdale phone listing or responses from two attorneys who represented the company. 

Berkley had sued Suffolk for breach of contract in 2019, claiming the contractor owed money to Titus for its work at Met Square. 

The matter was decided in Berkley's favor after a nonjury trial in November 2023. In her verdict for Berkley, Judge Kathleen Williams cited a lack of evidence about disputed schedules from Suffolk.

Berkley now seeks $2.1 million for attorneys' fees and expert witnesses, on top of the damages and interest, according to a motion made by the surety in September. 

Seven attorneys who worked on the case earned $225 to $250 an hour each, and the paralegals earned $125 an hour, Berkley reported in its motion for costs.

Berkley seeks $501,000 for expert witness testimony, with the firm and Titus also asking for an additional $391,000 for "database services" related to producing documents needed, with another $15,000 for technology needed to manage the case and documents, and $15,000 more for the travel costs of attorneys and witnesses.

Suffolk's Victory in Prior Lawsuit

Suffolk has asked Judge Williams to offset the costs of its losing verdict, when finalized, against the amount it was awarded in a separate state circuit court case in Miami-Dade County.

Titus sued Suffolk in that case, blaming it for cost overruns and delays on a $1.9 million drywall subcontract, signed in 2016, for work on the Miami Central Overbuild, a high-rise office building constructed over the Brightline Main Train Terminal. A judge in March 2023 ordered Titus to pay Berkley $7.7 million. 

That verdict was issued as a default judgment, meaning that Titus, which was the plaintiff, failed to continue its claims against Suffolk or defend itself against the contractor's counterclaims.

To ease some of the financial sting of the federal court verdict, Suffolk wants Judge Williams to allow it to deduct whatever the company is finally ordered to pay Berkley from what Titus owed the contractor in the state court case.

While Suffolk makes its case for the offset, Berkley argues that it deserves all of the steep attorneys' fees and court costs.

That particular argument depends on some legal twists and turns.

Berkley notes that Titus' subcontract with Suffolk required the sub to pay attorney and trial costs if the contractor prevailed in a legal dispute. But Berkley said Florida statutes require that any contract with that one-way provision automatically is interpreted as a two-way obligation. Berkley also claims it is entitled to the court costs and attorney fees by virtue of its surety agreement with Titus.

"The court rejected all of Suffolk's defenses and attempted reductions of Titus' damage amounts," Berkley argues, "There is no way to describe the outcome of this case other than as a complete victory" for the surety and Titus.

A final ruling from the judge on both the ultimate court costs and whether the offset can be used is still likely weeks or months off.