10 Fla. L. Weekly Supp. 726b
Insurance — Personal injury protection — Attorney’s fees — Proposal for settlement — Small claims — Where there is no order or stipulation invoking rules of civil procedure in action for PIP benefits in small claims court, proposal for settlement is improperly filed — Motion to strike proposal granted
PRESGAR MEDICAL IMAGING d/b/a CENTRAL MAGNETIC IMAGING (a/a/o Guillermo Tallet), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INS. CO., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 99-6488 SP 23 (04). May 22, 2003. Linda Dakis, Judge. Counsel: Kenneth J. Dorchak, North Miami. Christopher Esco, Miami.
ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S PROPOSAL FOR SETTLEMENT
This Cause came on for hearing on Plaintiff’s Motion to Strike Defendant’s Proposal for Settlement and after hearing argument of the counsel, the Court
ORDERS AND ADJUDGES:
1. The Plaintiff’s Motion to Strike Defendant’s Proposal for Settlement is granted.
This action stems from a claim for unpaid personal injury protection benefits wherein the injured party assigned his right to bring the action to the medical provider. The provider sought benefits in the Small Claims Division of the County Court. At the Pre-trial Conference, the presiding judge on the docket sheet wrote “invoke rules for discovery”. Notably absent from the record is any further stipulation or order invoking the applicability of the rules of civil procedure, including Fla. R. Civ. P. 1.442. The defendant prevailed at trial and seeks to recover fees and costs under F.S. 768.69 and Rule 1.442. Plaintiff has filed a Motion to Strike the claim for fees and costs.
The Proposal for Settlement is improperly filed in that actions in the Small Claims Division of the County Court are not automatically bound to the dictates of the Florida Rules of Civil Procedure. In fact Rule 7.020(a) Fla. Sm. Cl. R. provides that a Court may order the small claims action to proceed under one or more of the rules of civil procedure upon application of any party, stipulation by all parties or on the court’s motion. In our case, there is no record evidence to support invocation of this rule. In fact, the docket sheet indicates the contrary.
In Chessher v. State Farm Mutual Automobile Ins. Co., 8 Fla. L. Weekly Supp. 245a (County Court, First Judicial Circuit in and for Escambia County, Case No. 99-3236 SP 11, Division 5, January 25, 2001), the Court reviewed U.S. Security Ins. Co. v. Cahuasqui, 760 So. 2d 1101 (Fla. 3rd DCA 2000) in an attempt to determine if Rule 1.442 should be applied to small claims actions where there is no invocation of this specific rule. In Cahuasqui, the case was filed in the County Court, Civil Division, under the rules of civil procedure, not the small claims rules. It has historically been recognized that small claims cases are different from those under the technical rules of civil procedure. The rules governing small claims were developed to implement the simple, speedy and inexpensive trial of actions. Many litigants are unrepresented and unable to deal with the technicalities of the rules of civil procedure. Such is the case with the application of Rule 1.442 due to its technical requirements and its penalties. The assumption of its applicability is incompatible with the design and intent of small claims case disposition.
Accordingly, the Court grants the Motion to Strike the Proposal for Settlement.
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