18 Fla. L. Weekly Supp. 1189a
Online Reference: FLWSUPP 1811CARC
Insurance — Personal injury protection — Attorney’s fees — Offer of judgment — Good faith offer — Nominal offer of judgment was valid offer made in good faith where insurer had reasonable basis to conclude that its exposure was nominal and its liability was nonexistent since benefits had been exhausted — Justiciable issues — Award of fees under section 57.105 is denied
PEMBROKE PINES MRI, INC. (A/A/O COLEEN CARCELLI), Plaintiff, vs. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. 10-08138 COCE 54. September 7, 2011. Honorable Lisa G. Von Tefs, Judge. Counsel: Charles Kane, for Plaintiff. Reuven T. Herssein, Law Offices of Herssein & Herssein, P.A., North Miami, for Defendant.
ORDER GRANTING ENTITLEMENT TO ATTORNEY’S FEES AND COSTS
THIS CAUSE came before the Court on August 26, 2011, for hearing on United Services Automobile Association’s [“USAA”] Motion for Entitlement to Attorney’s Fees and Costs, and the Court’s having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument of counsel; having made a thorough review of the matters filed on record; and having been sufficiently advised on the premises, the Court finds as follows:
The narrow issue before this Court is whether an insurer, as the prevailing party in a case, is entitled to an award of it’s attorney’s fees and costs, pursuant to Fla. R. Civ. P. 1.442 and Fla. Stat. §§768.79 and §57.105.
Findings of Fact
On or about May 18, 2010, Plaintiff filed this lawsuit against USAA for No fault benefits. On July 23, 2010, with its notice of intent to seek §57.105 Sanctions, USAA placed the Plaintiff on notice that all policy benefits available to the claimant had exhausted as of May 4, 2010. USAA, in accordance with Fla. Stat. §57.105, gave the Plaintiff the requisite 21 day safe harbor in which to dismiss the lawsuit, but Plaintiff chose not to do so. Thereafter, on September 16, 2011 USAA timely filed its Motion for Sanctions Pursuant to, and in Accordance with, Florida Statute §57.105.
On September 16, 2010, USAA served the Plaintiff with a Proposal for Settlement, pursuant to and in accordance with Fla. R. Civ. P. 1.442, and Fla. Stat. §768.79, which was not accepted, and therefore, expired.
On June 1, 2011, based on the overwhelming binding case law1 on the benefits exhaustion issue,2 this Court granted Final Summary Judgment in favor of USAA. [18 Fla. L. Weekly Supp. 1175a] Subsequent thereto, as the prevailing party, USAA timely filed its Motion for Attorney’s Fees and Costs pursuant to Fla. R. Civ. P. 1.442 and Fla. Stat. §§768.79 and §57.105. There is no dispute that the Plaintiff received both the proposal for settlement, and the 57.105 motion, and that USAA met all the technical [service] requirements.
The Plaintiff contests USAA’s entitlement to attorney’s fees and costs pursuant to Fla. Stat. §768.79, alleging that USAA’s proposal for settlement was not made in good faith. They also allege USAA failed to meet the requisite standard for an award of attorney’s fees and costs, pursuant to Florida Statute §57.105.
Conclusions of Law
This Court finds that the facts and circumstances of this case entitle USAA to recover reasonable award of attorney’s fees and costs incurred in defense of the instant suit, in accordance with Fla. R. Civ. P. 1.525, Fla. R. Civ. P. 1.442, Fla. Stat. §768.79.
This Court denies the award of attorney’s fees sought by USAA pursuant to Fla. Stat. §57.105.USAA’s Offer of Judgment was made in Good Faith
Florida Statute §768.79 provides in pertinent part:
“(1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability . . .
(6) Upon motion made by the offeror within 30 days after the entry of judgment or after voluntary or involuntary dismissal, the court shall determine the following:
(a) If a defendant serves an offer which is not accepted by the plaintiff, and if the judgment obtained by the plaintiff is at least 25 percent less than the amount of the offer, the defendant shall be awarded reasonable costs, including investigative expenses, and attorney’s fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred from the date the offer was served . . .” [emphasis added]
Binding case law holds that, “The statute allows the court, in its discretion, to deny an award of attorney’s fees, but only if it determines that a qualifying offer ‘was not made in good faith.’ ” See Bosem v. Commerce & Indus. Ins. Co., 35 So. 3d 944, 946 (Fla. Dist. Ct. App. 3d Dist. 2010) [35 Fla. L. Weekly D892a] (citing TGI Friday’s, Inc. v. Dvorak, 663 So. 2d 606, 612 (Fla. 1995) [20 Fla. L. Weekly S436a]). In Bosem, the Third District Court of Appeals found there was no evidence that a proposal for settlement of $250 was in bad faith, and therefore required the lower Court to award attorney’s fees and costs pursuant to Fla. Stat. §768.79. Please see Bosem, 35 So. 3d 944 at 946. The issue of good faith is determined solely by the subjective motivations and beliefs of the offeror at the time the offer was made, not the reactions of the offeree. See Wagner v. Brandeberry, 761 So. 2d 443, 446 (Fla. 2nd DCA 2000) [25 Fla. L. Weekly D1344b]. Florida courts have repeatedly held that the “obligation of good faith [found in section 768.79] merely insists that the offeror have some reasonable foundation on which to base an offer”. Please see Weesner v. United Services Auto. Ass’n., 711 So. 2nd 1192, 1194 (Fla. 5th DCA 1998) [23 Fla. L. Weekly D1049a] quoting Schmidt v. Fortner, 629 So. 2nd 1036, 1039 (Fla. 4th DCA 1993). See also Connell v. Floyd, 866 So.2d 90, 94 (Fla. 1st DCA 2004) [29 Fla. L. Weekly D175b] (“The rule is that a minimal offer can be made in good faith if the evidence demonstrates that, at the time it was made, the offeror had a reasonable basis to conclude that its exposure was nominal.”).
Plaintiff’s allegation of a bad faith offer is predicated on the fact that Defendant offered a nominal proposal for settlement of $1.00. This Court does not agree with Plaintiff’s position, as Florida Jurisprudence clearly allows nominal proposals for settlement, including offers of $1.00, which are valid and enforceable. Please see Eagleman v. Eagleman, 673 So.2d 946 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1192a] (“Offers are not suspect merely because they are nominal.”). See also State Farm Mut. Auto. Ins. Co. v. Marko, 695 So. 2d 874, 876 (Fla. 2d DCA 1997) [22 Fla. L. Weekly D1505c] (holding offer of judgment for $1.00 to be in good faith and a statement that offeror believed tortfeasor’s liability would not exceed primary policy limits and therefore leave secondary insurer untouched); Weesner v. United Services Auto. Ass’n., 711 So. 2nd 1192, 1194 (Fla. 5th DCA 1998) (holding offer of $100 was an offer in good faith and since insurer believed it faced no liability); and Peoples Gas System, Inc. v. Acme Gas Corp., 689 So. 2d 292 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D205d] (finding offeror’s nominal offer of $2,500, or .00142857% of the $3.5 million settlement amount to be valid and in good faith).
The undisputed record evidence in this case, [and this was supported by the arguments made by Reuven Herssein, Counsel for USAA], was that USAA had a reasonable basis to conclude that its exposure was nominal and its liability was non-existent — given all the binding case law that stands for the proposition that once all available benefits under the policy of insurance have exhausted, the insurer will not be obligated to pay any more [PIP] benefits.
The Plaintiff also argues that this Court should deny entitlement to USAA [as the prevailing party] and deem the $1.00 offer an offer not made in good faith, because in some other completely separate and unrelated cases where USAA is represented by the Law offices of Herssein & Herssein P.A., USAA has served $1.00 offers of Judgment as well.
Whether the offeror has a reasonable basis to support the offer is “determined solely by the subjective motivations and beliefs of the offeror.” Wagner v. Brandeberry, 761 So. 2d 443, 446 (Fla. 2d DCA 2000); Weinstein, 747 So. 2d at 1021.
In making this determination, the trial court is not restricted to the testimony of the offeror attesting to good faith; rather, the court may properly consider objective evidence of facts and circumstances that suggest whether the offeror made the offer with subjective good faith. Gurney v. State Farm Mut. Auto Ins. Co., 889 So. 2d 97, 99 (Fla. 5th DCA 2004) [29 Fla. L. Weekly D2641a]. Several types of objective evidence have been found relevant to a finding of good faith. See. e.g., City of Neptune Beach v. Smith, 740 So. 2d 25, 27 (Fla. 1st DCA 1999) [24 Fla. L. Weekly D836b] (holding that relevant objective factors include amount of each offer and potential liability offeror faced at time offer was made); Fox v. McCaw Cellular Commc’ns of Florida, Inc., 745 So. 2d 330, 333 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D2687a] (holding that the trial court may consider the totality of the whole case record when determining whether good faith was present). (emphasis added).
Based on the totality of the whole case record, in addition to the specific facts and circumstances of this case, and having listened to and weighed the arguments made by USAA [Reuven Herssein, Esquire, Counsel for USAA] as to the subjective motivations and beliefs of the offeror for making the $1.00 offer in this case, this Court finds USAA’s $1.00 offer of judgment was a valid offer, made in good faith.Conclusion
Accordingly, this Court finds that USAA is entitled to recover reasonable attorney’s fees and costs incurred in defense of the instant suit, in accordance with Fla. R. Civ. P. 1.525, Fla. R. Civ. P. 1.442, Fla. Stat. §768.79.
This Court denies the award of attorney’s fees sought by USAA pursuant to Fla. Stat. §57.105.
The Court reserves jurisdiction to determine [at an evidentiary hearing] the amount of reasonable attorney’s fees and costs.
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1Progressive American Insurance Co. v. Stand-up MRI of Orlando, 990 So.2d 3 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1746a], Simon v. Progressive Express Insurance Co., 904 So.2d 449 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1156b], and Millennium Diagnostic Imaging Center, Inc. a/a/o Alfonso Taboada v. Progressive Express Insurance Company, 14 Fla. L. Weekly Supp. 938a (Fla. 11th Jud. Cir. July 19, 2007), cert. denied, 2008 Fla. App. Lexis 10301 at *1, 33 Fla. L. Weekly D 1742b (Fla. 3d DCA July 9, 2008).
2This Court granted Final Summary Judgment in favor of USAA, finding that an insurer is not responsible for payment of any further benefits once PIP benefits have been exhausted under the policy, unless the insurer acts in bad faith in denying the claim, however, bad faith does not exist when an insurer takes a legal position, relying upon the status of the law at that time, when there is no binding authority stating otherwise.
