NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly D114c
29 Fla. L. Weekly D2189a
Torts — Insurance — Uninsured motorist — Attorney’s fees — Costs — Where plaintiff who was injured in automobile accident brought action against tortfeasor and plaintiff’s UM insurer, tortfeasor’s insurer offered policy limits of $100,000 which plaintiff wished to accept, but did not because UM insurer refused to waive its subrogation rights and paid plaintiff the amount of the offer, UM insurer subsequently accepted policy limits of $100,000 from tortfeasor’s insurer and waived its subrogation rights against tortfeasor, and verdict of $48,000 was returned on the UM claim, trial court erred in granting tortfeasor’s motion to tax costs against plaintiff — When UM insurer became subrogated to plaintiff’s claim against tortfeasor, it became the real party in interest in suit against tortfeasor and is therefore liable for costs — Court did not err in awarding attorney’s fees and costs to UM insurer based on its offer of judgment in the amount of $501 — Because the UM insurer had no exposure unless plaintiff’s damages exceeded tortfeasor’s policy limits of $100,000, insurer’s offer of $501 was the equivalent of $100,501, and was made in good faith
CHARLES VECCHIO and SONDRA VECCHIO, Appellants, v. CURT A. VAN CLEAVE and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellees. 4th District. Case No. 4D03-4224. Opinion filed September 29, 2004. Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Robert A. Hawley, Judge; L.T. Case No. 2000-470-CA-10. Counsel: John G. Rooney of Brooker & Rooney, P.A., Vero Beach, for appellants. Richard A. Sherman, Sr. of the Law Offices of Richard A. Sherman, P.A., Ft. Lauderdale and Keith Bregoff of the Law Offices of Patricia E. Garagozlo, Melbourne, for appellee Curt A. Van Cleave. Angela C. Flowers of Kubicki Draper, Miami, for appellee State Farm Mutual Automobile Insurance Co.
(KLEIN, J.) Appellant plaintiffs brought this suit for auto accident injuries against the tortfeasor and their UM insurer, which resulted in a low jury verdict. The issues we address are whether an offer of judgment was in good faith and whether costs should have been assessed against appellant in favor of the tortfeasor.
Plaintiff Charles Vecchio was injured in the accident by a tortfeasor who had $100,000 limits with Allstate. He sued both the tortfeasor and his own UM insurer, State Farm. The tortfeasor’s insurer offered the policy limits, which plaintiff wished to accept; however, the UM insurer refused to waive its subrogation rights. See § 627.727(6), Florida Statutes (1999). As required by section 627.727(6)(b), the UM insurer then paid plaintiffs the amount of the offer.
Plaintiff’s suit against the tortfeasor and UM insurer continued through trial, but while the jury was deliberating, the UM insurer accepted the policy limits of $100,000 from the tortfeasor’s insurer, agreeing to waive its subrogation rights against the tortfeasor. This left only the UM claim pending, which resulted in a verdict totaling $48,000.
The first issue is whether the trial court erred in granting the tortfeasor’s motion to tax costs against plaintiff. Plaintiffs argue that the tortfeasor should not have been entitled to tax costs against them, because they had at all times wanted to accept the tortfeasor’s offer. The claims against the tortfeasor went to trial, they point out, only because their UM insurer insisted on it.
We conclude that under section 627.727(6), when the UM insurer became subrogated to plaintiffs’ claim against the tortfeasor, it became the real party in interest in the suit against the tortfeasor and is therefore liable for costs under section 57.041, Florida Statutes (2004). Jack Eckerd Corp. v. Fla. Unemployment Appeals Comm’n, 525 So. 2d 468 (Fla. 3d DCA 1988). The tortfeasor’s costs should not have been assessed against the plaintiffs.
Plaintiffs also argue that the court erred in awarding attorney’s fees and costs to plaintiffs’ UM insurer based on the offer of judgment made by the UM insurer in the amount of $501. They argue that the low offer was not made in good faith. The UM insurer, however, had no exposure unless plaintiffs’ damages exceeded the tortfeasor’s policy limits of $100,000. The offer of $501, which was the equivalent of $100,501, was in good faith.
We therefore reverse the judgment requiring plaintiffs to pay the tortfeasor’s costs, but affirm the costs and attorney’s fees assessed against plaintiffs in favor of the UM insurer. (SHAHOOD, J., and EMAS, KEVIN M., Associate Judge, concur.)
