10 Fla. L. Weekly Supp. 1060c
Insurance — Personal injury protection — Small claims — Proposal for settlement — Motion to apply rule 1.442, Florida Rules of Civil Procedure, denied
NON-OPERATIVE SPINE, PAIN AND NEUROMUSCULAR CENTER, as assignee of Bradford Keller, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 20th Judicial Circuit in and for Collier County. Case No. 02-2501-SP. October 29, 2003. Vince Murphy, Judge. Counsel: Lorca Divale, Morgan Colling & Gilbert, Fort Myers. Marc Crumpton.
[Related order at 10 Fla. L. Weekly Supp. 1060b.]
ORDER DENYING DEFENDANT’S MOTION TO APPLY FLORIDA RULE OF CIVIL PROCEDURE 1.442
This cause coming to be heard upon the foregoing Motion to Apply Florida Rule of Civil Procedure 1.442 and the court having considered the record, having heard argument of counsel, and otherwise being duly advised in the premise, it is
ORDERED AND ADJUDGED as follows:
1. Plaintiff filed a Personal Injury Protection (PIP) suit in Small Claims Court for damages in the amount of $1,805.80.
2. Defendant, Progressive Express Insurance Company, filed a Motion to Apply Florida Rule of Civil Procedure 1.442 for purposes of filing a Proposal For Settlement.
3. Defendant argues that Florida Rule of Civil Procedure 1.442 is applicable to PIP actions pursuant to U.S. Security Insurance Co. v. Cahuasqui, 760 So. 2d 1101 (Fla. 3rd DCA 2000).
4. Plaintiff argues that this court is not bound by the ruling in Cahuasqui because application of additional rules of Civil Procedure is at this court’s discretion pursuant to Florida Small Claims Rule 7.020(c).
5. Plaintiff further argues that Florida Rule of Civil Procedure 1.442 is incompatible with the Florida Supreme Court’s ruling in Allstate Insurance Company v. Ivey, 25 Fla. L. Weekly S1103 (Fla. 2003) read in conjunction with the Second District Court of Appeal’s ruling in Doyle-Vallery v. Arinabar, 28 Fla. L. Weekly D336 (Fla. 2nd DCA 2003).
6. This court finds that Florida Rules of Civil Procedure 1.010 and 1.040 clearly exclude Small Claims actions from the required application of the Florida Rules of Civil Procedure and therefore this court is not bound by the ruling in Cahuasqui. At this court’s discretion Defendant’s Motion is denied and the instant action will proceed without application of Florida Rule of Civil Procedure 1.442.
* * *
