                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                              FEB 16, 2007
                             No. 06-12369                   THOMAS K. KAHN
                         Non-Argument Calendar                  CLERK
                       ________________________

                   D. C. Docket No. 04-20993-CV-JEM


PROGRESSIVE EXPRESS INSURANCE COMPANY,

                                           Plaintiff-Counter-Defendant-Appellee,

                                  versus

MOSHE WEITZ,

                                       Defendant-Counter-Claimant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                           (February 16, 2007)

Before ANDERSON, BARKETT and HILL, Circuit Judges.
PER CURIAM:

      The underlying action was filed by Progressive Express Ins. Co.

(“Progressive”) for a declaration as to the extent of its liability under its policy of

insurance issued to Moshe Weitz for loss of the insured’s boat. After resolution of

the matter, Progressive took no issue with the appraisal, tendering payment. Weitz

now demands attorneys’ fees and costs, asserting that he is entitled to recover these

fees and costs, under Florida Statute § 627.428 because he “prevailed” in obtaining

the proceeds of his insurance policy. The district court denied recovery, holding

that Weitz did not prevail as contemplated by the statute. We agree.

      Weitz did not prevail in this lawsuit. He had entered into a contract with

Progressive under which he agreed to resolve all claims of loss by appraisal of the

boat and its damage. This provision for resolution of all claims was both valid and

binding, as his pleadings admit. From the beginning of this matter, and certainly

from the inception of this lawsuit, Progressive sought only to enforce this

provision. Progressive filed this action for declaratory relief only after what the

district court characterized as Weitz’s “repeated delays, sidestepping and

misdirection.” Weitz’s protestations to the contrary, that he was always ready to

settle this claim before a neutral umpire, are not supported by the record. The

record is quite clear that Progressive was at all times ready to pay the appraised



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value of the boat, but Weitz refused to participate in the process in a timely

fashion.

      Under these circumstances, it cannot be said that Weitz “prevailed” in this

action to recover the appraised value of his lost boat. The statute is clear that the

recovery of attorneys’ fees and costs from an insurer is justified “only when the

insurer has wrongfully withheld payment of the proceeds of the policy.”

Fireman’s Fund Ins. Co. v. Tropical Shipping & Constr. Co., 254 F.3d 987, 1010

(11 th Cir. 2001). Since Progressive stood ready to arbitrate and pay the arbitration

award, did not wrongfully withhold payment of the proceeds of the policy, we

agree with the district court that the statute does not apply. Accordingly, the

judgment of the district court is

      AFFIRMED.




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