Florida Attorneys’ Fees Statute: Section 57.105 and Fee-Shifting Rules

Florida follows the American Rule, meaning each side pays its own lawyer unless a statute or a contract says otherwise. The Florida attorneys fees statute framework is not one law but a network of them: Section 57.105 punishes frivolous positions, Section 768.79 penalizes rejected settlement offers, Section 86.121 covers certain insurance declaratory actions, and subject-specific statutes govern family law, consumer protection, construction liens, probate, and bad faith. The 2023 tort reform law (HB 837) rewrote significant parts of this landscape, so anyone relying on older guidance about insurance fee recovery should start fresh.

What Changed in 2023

Governor DeSantis signed HB 837 on March 24, 2023, and it repealed Section 627.428 outright. That statute had required insurers to pay a policyholder’s attorney fees whenever the policyholder won a coverage dispute, and it had been part of Florida insurance law for decades. Coverage lawsuits filed after the effective date no longer benefit from that one-way rule.

The replacement is Section 86.121, and it is much narrower. A policyholder can recover fees only by winning a declaratory judgment action brought after the insurer issued a total coverage denial. A defense under a reservation of rights does not count as a total denial, and the statute does not apply at all to residential or commercial property insurance policies.¹

The 2023 law also created Section 624.1552, which extends the offer-of-judgment mechanism in Section 768.79 to insurance contract disputes, giving both sides a two-way fee tool in coverage litigation.² And it tightened Section 57.104: the lodestar amount now carries a strong presumption of sufficiency, and fee multipliers are available only in rare and exceptional circumstances.³

Section 57.105: Sanctions for Frivolous Claims and Defenses

Section 57.105 is the workhorse sanctions statute. When a court finds that a party or attorney knew, or should have known, that a claim or defense had no factual support or no basis in existing law, the court must award reasonable attorney fees to the other side. The award is split equally between the losing party and the attorney, so lawyers have a personal financial stake in not pushing meritless positions. Prejudgment interest runs from the point entitlement is established, not just from the final fee judgment.⁴

The 21-Day Safe Harbor

You cannot file a 57.105 motion with the court cold. The statute requires serving the motion on the opposing side first and waiting 21 days. If the other side withdraws or corrects the offending position within that window, the motion dies. The safe harbor prevents 57.105 from being used as a surprise tactic and gives litigants a real chance to back away.⁴

Section 768.79: Offers of Judgment

Section 768.79 is the settlement-pressure statute. Either side can serve a formal written offer of judgment. If the other side rejects it and the final result at trial is at least 25 percent less favorable than the offer, the offering party recovers attorney fees from the date the offer was filed forward.⁵

The threshold cuts both ways. If a defendant’s offer is rejected and the plaintiff wins nothing, or wins at least 25 percent less than the offer, the defendant recovers fees. If a plaintiff’s demand is rejected and the plaintiff wins at least 25 percent more than the demand, the plaintiff recovers fees. When the defendant’s fee award exceeds the plaintiff’s recovery, the court enters a net judgment for the defendant.⁵

Florida courts demand strict compliance with the formal requirements. The offer must be in writing, explicitly state that it is being made under Section 768.79, name both the party making it and the party receiving it, state the total amount, and separately specify any portion attributable to punitive damages. A defect in any of those elements can invalidate the offer, and the defect usually surfaces only after trial, when it is too late to cure.⁶

Reciprocal Fees on One-Way Contract Clauses

Consumer contracts, loan documents, and commercial leases often include a fee clause that runs only one way, letting the drafter recover fees but saying nothing about the other side. Section 57.105(7) lets courts award reasonable fees to the non-favored party as well, treating a one-sided clause as reciprocal. If your mortgage lets the lender recover fees from you but says nothing about your right to recover fees from the lender, a court can even the clause out.⁴

The statute uses “may” rather than “shall,” so this is discretionary. Florida courts routinely extend reciprocity in foreclosure cases where a borrower successfully defends, but the permissive language means a judge could decline in unusual circumstances. The provision applies to contracts entered into on or after October 1, 1988.⁴

Fee-Shifting Statutes by Case Type

Alongside the general mechanisms, Florida has subject-specific statutes covering particular disputes. Conditions and standards vary meaningfully across areas.

Insurance Bad Faith

Section 624.155 lets a policyholder sue an insurer that fails to act in good faith in handling a claim. A policyholder who wins at trial or on appeal recovers damages, court costs, and reasonable attorney fees. The threshold is higher than an ordinary coverage dispute: the insurer must have unreasonably failed to settle or process a valid claim despite having the ability and obligation to do so.⁷

Consumer Protection (FDUTPA)

Section 501.2105 allows the prevailing party in a Florida Deceptive and Unfair Trade Practices Act case to recover reasonable attorney fees and costs after a final judgment and exhaustion of all appeals. This runs both ways. A consumer who loses a FDUTPA suit can be ordered to pay the business’s legal costs.⁸

Family Law

Section 61.16 gives courts discretion to order one spouse to pay the other’s fees in divorce, custody, and related proceedings after weighing both parties’ financial resources. The goal is to keep the less-resourced spouse in the game. Because the provision is discretionary, the requesting party has to show a genuine financial need.⁹

Probate

Section 733.106 lets courts award fees from an estate’s assets when an attorney has rendered services to the estate. Courts can also assess fees against a specific beneficiary’s share, and if that share is insufficient, direct payment from a related trust when a pour-over will is involved.¹⁰

Construction Liens

Section 713.29 entitles the prevailing party in a construction lien enforcement action to reasonable attorney fees at both the trial and appellate levels, taxed as part of the prevailing party’s costs.¹¹

Mandatory vs. Discretionary Awards

Not every fee statute works the same way, and the difference determines how confident you can be about the outcome. Mandatory provisions use “shall.” Once a court finds the trigger, the award follows. Section 57.105(1) requires fees for frivolous positions. Section 86.121 requires them when a policyholder wins a declaratory judgment after a total denial. Section 713.29 requires them for the prevailing party in a lien dispute.

Discretionary provisions use “may.” Section 61.16 lets courts weigh financial disparity in family cases. Section 57.105(7) lets courts extend a one-way clause to both parties. Section 501.2105 gives the prevailing FDUTPA party fees but is treated as discretionary. Winning the case is not the same as winning the fees, because the judge still has to decide.

How the Court Calculates the Amount

Once entitlement is established, the court sets the amount using the lodestar method: a reasonable hourly rate multiplied by the reasonable number of hours worked. The judge must make specific findings on both figures.

Reasonableness draws on factors developed through case law:

Time and difficulty of the case
Skill required to handle the legal issues
Local market rates for attorneys of similar experience
Amount at stake and results actually obtained
Time constraints imposed by the client or the circumstances
Experience and reputation of the lawyers involved
Whether the attorney worked on a fixed-fee or contingency basis

Under the amended Section 57.104, the lodestar carries a strong presumption that it is sufficient. Multipliers on top of it are now available only in rare and exceptional circumstances, adopting the more restrictive federal standard. Before 2023, multipliers were common in insurance cases with contingency arrangements; that practice has largely ended.³

The 30-Day Deadline to Move for Fees

Missing the deadline can forfeit an award you clearly deserve. Florida Rule of Civil Procedure 1.525 requires any motion for fees or costs to be served within 30 days after the filing of the judgment that ends the case, including final judgments, judgments of dismissal, and voluntary dismissals.¹²

The motion has to identify the statute, contract clause, or court order that authorizes the fee shift. Winning the case alone is not enough. Courts typically hold evidentiary hearings on reasonableness, where the requesting party presents billing records, explains the work, and addresses the lodestar factors.

For Section 768.79 offers, there are additional procedural layers. The offer itself must comply with every statutory requirement before trial, and the post-trial fee motion has to show both that the offer was valid and that the final judgment triggered the 25 percent threshold.⁵

Appellate fees follow separate rules. A motion for appellate fees must be filed in the appellate court, served no later than the deadline for the reply brief, and filed as a separate motion rather than embedded in the brief.

Collecting on a Fee Award

An award on paper is not money in the bank. When the losing party will not pay, Chapter 56 of the Florida Statutes provides the collection tools. A writ of execution lets the prevailing party levy against non-exempt property such as real estate, personal property, bank accounts, vehicles, and corporate assets. If the debtor’s holdings are not obvious, proceedings supplementary under Section 56.29 compel the debtor to appear and disclose finances under oath.¹³

Family law fee orders carry an extra lever. A party who defies a court order to pay fees can face contempt proceedings, with escalating monetary sanctions and, in extreme cases, incarceration for civil contempt. That makes family fee orders somewhat easier to enforce than fee judgments in ordinary civil cases, where collection depends on finding assets to seize.

1
Florida House of Representatives. Florida Statutes Chapter 86
2
Florida Senate. 2023 Bill Summaries CS/CS/HB 837 – Civil Remedies
3
The Florida Legislature. Florida Code 57.104 – Reasonable Attorney Fee
4
The Florida Legislature. Florida Code 57.105 – Attorney Fee; Sanctions for Raising Unsupported Claims or Defenses
5
Florida Senate. Florida Code 768.79 – Offer of Judgment and Demand for Judgment
6
The Florida Legislature. Florida Code 768.79 – Offer of Judgment and Demand for Judgment
7
Florida Senate. Florida Code 624.155 – Civil Remedy
8
Justia. Florida Code 501.2105 – Attorney Fees
9
Florida Senate. Florida Code 61.16 – Attorney Fees, Suit Money, and Costs
10
Florida Senate. Florida Code 733.106 – Costs and Attorney Fees
11
Justia. Florida Code 713.29 – Attorney Fees
12
The Florida Bar. Florida Rules of Civil Procedure – Rule 1.525
13
The Florida Legislature. Florida Statutes Title VII – Chapter 56 Final Process