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There can be Consequences when Voluntarily Dismissing Lawsuit

There can be consequences when you voluntarily dismiss a lawsuit simply because you don’t want to deal with the claim anymore.  Or, you realize there are problems with your claim. Such consequences can arise if there is a basis for the prevailing party to recover attorney’s fees.  Thus, don’t think you can just voluntarily dismiss your case without dealing with attorney’s fees. These are consequences you may need to deal with if you want to voluntarily dismiss your lawsuit.

The general rule is that when a plaintiff voluntarily dismisses an action, the defendant is the ‘prevailing party’ within the meaning of statutory or contractual provisions awarding attorney’s fees to the ‘prevailing party’ in litigation.” Viler v. Universal Property & Casualty Ins. Co., 49 Fla.L.Weekly D9535f (Fla. 4th DCA 2024) (citation omitted). While there are limited exceptions to this general rule (e.g., where a defendant agreed to the plaintiff’s demands or the defendant undertook actions to render the plaintiff’s claims moot), the general rule allows for attorney’s fees to be awarded to a defendant if there is a contractual or statutory basis after a plaintiff voluntarily dismisses its lawsuit.  See id.

In Viler, a property insurer, through a subrogation action, initiated a lawsuit.  After discovery, the insurer voluntarily dismissed the lawsuit.  The insurer presumably learned it had the wrong facts and couldn’t prove its theory of liability. The defendant moved for attorney’s fees as the prevailing party since there was both a statutory and contractual basis for fees. The trial court did not award fees and the defendant appealed. “Here, the trial court abused its discretion in not applying the general rule that a defendant is the prevailing party when a plaintiff voluntarily dismisses an action.” Viler, supra.


Please contact David Adelstein at [email protected] or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.


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