What does "prevailing party" mean in a fee clause?

It means the side that wins on the significant issues in the case, not simply the side that walks away with a judgment. Florida courts look at what was actually contested and who prevailed on it, so a party that recovers a small fraction of what it demanded may not be the prevailing party at all. In lien cases, a court can even find that neither side prevailed for fee purposes. The determination is made by the judge after the case is decided.

What if my construction contract says nothing about attorney fees?

Then the contract gives you no fee right, and the reciprocity rule in section 57.105(7) has nothing to work with. You would need a statutory basis instead: a lien or payment-bond action carries prevailing-party fees under section 713.29, and a proposal for settlement under section 768.79 can shift fees in any damages case. If none of those apply, the American rule controls and each side pays its own lawyer regardless of who wins.

Are expert witness costs recoverable too?

Sometimes, but the rules are narrower than for attorney fees. A fee clause or fee statute covers attorney fees; litigation costs are taxed separately under Florida's cost guidelines. Courts commonly tax the fees of experts who testify, such as the engineers we retain as independent experts in defect cases, but consulting-only expert work and general investigation costs are often not recoverable. Budget for expert costs as a real expense, not a guaranteed reimbursement.

If I sue and lose, could I have to pay the other side's fees?

Possibly. Florida's fee statutes are largely reciprocal: section 57.105(7) reads a one-sided contract fee clause as applying to both parties, and section 713.29 awards fees to the prevailing party in a lien action either way. So the same rule that can win you your fees can also expose you if the claim fails. One tool that cuts both ways is a proposal for settlement under section 768.79, which can shift fees based on how the final result compares to an offer made during the case.

Who Pays Attorney Fees in a Construction Lawsuit?

Written and reviewed by Cory Cannon, Esq.

Published July 12, 2026 Updated October 10, 2026

By default, Florida follows the American rule: each side pays its own attorney fees, win or lose. But construction cases are a major exception: a fee clause in your contract, Florida’s lien statute, or a formal settlement offer can shift the entire fee bill onto the losing side.

The Default Rule: Each Side Pays Its Own Lawyer

A Florida court cannot order the loser to pay the winner’s attorney fees unless a contract or a statute authorizes it. That is the American rule, and it governs most civil litigation. Construction is different because the exceptions come up constantly. Three of them account for most fee awards in construction cases.

1. A Prevailing-Party Clause in the Contract

Most written construction contracts include a clause awarding attorney fees to the “prevailing party,” the side that wins on the significant issues in the dispute. If your contract has one, the loser pays the winner’s reasonable fees.

Some contractor-drafted agreements make the clause one-way: fees for the contractor if it has to collect, nothing for the owner. Florida closed that gap. Under section 57.105(7), Florida Statutes, a one-sided fee provision becomes reciprocal: the court may award fees to whichever party prevails, whether it sued or was sued. The rule covers contracts entered into on or after October 1, 1988, which is effectively all of them.

Example: Your contract says the builder recovers its collection costs and fees. You sue over defective work and win. The reciprocity statute lets the court award your fees against the builder, even though the clause never mentioned you.

2. Lien and Payment-Bond Actions

Under section 713.29, the prevailing party in an action to enforce a construction lien, or a claim against a payment bond under Florida’s lien law, is entitled to reasonable attorney fees for trial and appeal. No contract clause is needed; the statute supplies the fee right. Public-project payment bonds carry a similar prevailing-party provision in section 255.05.

Example: A subcontractor records a $48,000 lien, forecloses, and prevails. The court adds the sub’s attorney fees to the judgment. Had the lien been defeated (recorded late, exaggerated, or unsupported), the property owner could recover fees instead.

Fee-shifting is one reason lien deadlines carry so much weight. Our construction lien and lien foreclosure pages cover the mechanics and the clocks.

3. A Proposal for Settlement

Under section 768.79, either side can serve a formal written settlement offer during the case. Rejecting one carries a penalty. If a defendant’s offer is rejected and the plaintiff later recovers at least 25 percent less than the offer, or nothing, the plaintiff owes the defendant’s attorney fees from the date of the offer. If a plaintiff’s demand is rejected and the judgment comes in at least 25 percent above it, the defendant pays.

Example: The contractor offers $60,000 to settle. The owner refuses and wins $40,000 at trial. Because the recovery fell more than 25 percent below the offer, the owner may owe the contractor’s post-offer fees, which can consume the judgment.

Fee-Shifting Cuts Both Ways

Every mechanism above runs in both directions. The same clause that lets you recover fees makes you liable for the other side’s fees if you lose.

Who Pays Is Not the Same as What We Charge

This page is about who ultimately bears the fees; how we bill is a separate question. It depends on the matter. Contingency may be available.If your real dispute is with an insurance carrier rather than a contractor, different fee rules apply. Start with our property insurance claims overview and our FAQ on what a property insurance lawyer costs.

Start With the Contract

For any construction litigation matter, our resources library has guides and deadline calculators you can use today. Contact us for a free consultation: bring the contract, and we will tell you where the fee risk sits.

We may advance case costs. In certain circumstances, you may be responsible for case costs under your written agreement or the opposing party’s attorney’s fees or costs under applicable law, even without a recovery.