11 Fla. L. Weekly Supp. 444a
Insurance — Personal injury protection — Small claims — Attorney’s fees — Proposal for settlement — Motion to strike proposal for settlement filed pursuant to section 768.79 in small claims PIP action is denied
BACK INTO HEALTH CHIROPRACTIC, INC. d/b/a MIND, BODY, SPIRIT WELLNESS CENTER, as assignee of Jacqueline Dugger, Plaintiff, v. PROGRESSIVE AUTO PRO INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 2003-SC-10603. Division CC-O. March 19, 2004. Ronald P. Higbee, Judge. Counsel: David D. Candelaria, Farah, Farah & Abbott, P.A., Jacksonville. Ellen C. Pappas, Tallahassee.
ORDER ON PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S PROPOSAL FOR SETTLEMENT PURSUANT TO SECTION 768.79, FLORIDA STATUTES AND TO ENLARGETIME TO RESPOND TO DEFENDANT’S PROPOSAL
A hearing was held on the plaintiff’s Motion to Strike Defendant’s Proposal for Settlement Pursuant to Section 768.79, Florida Statutes. This case is a small claims action involving a suit under Florida’s PIP statute. The defendant submitted a proposal for settlement pursuant to Section 768.79, Florida Statutes, which included a $25 payment to settle the amount at issue and a $75 payment for attorney fees and costs. This court specifically reserves jurisdiction to determine at a later date whether this was, in fact, a good faith offer.
The posture of this case is such that neither the plaintiff nor the defendant had sought to apply any or all of the Florida Rules of Civil Procedure to this action. The plaintiff has advanced legitimate policy arguments as to why Florida Statute 768.79 and Rule 1.442 of the Florida Rules of Civil Procedure should not be applied in small claims cases. This court agrees that the policy arguments advanced by the plaintiff are well reasoned. However, this court has been provided with the case of Tran v. State Farm Fire and Casualty Company, 860 So.2d 1000 (Fla. 1st DCA 2003) (rehearing denied), which is a First District Court of Appeal case and is controlling in this action. The First District Court of Appeal found that Section 768.79, Florida Statutes, applies to cases brought under Florida Statute 627.736 and to actions pending in small claims court. That court did certify to the Florida Supreme Court the following question as one of great public importance: “May an insurer recover attorney’s fees under rule 1.442, Florida Rules of Civil Procedure, and section 768.79, Florida Statutes, in an action by its insured to recover under a personal injury protection policy?”
Unfortunately, it is not clear from the opinion of the First District Court of Appeal whether or not any or all of the Florida Rules of Civil Procedure were applied by the trial court in Tran. This court was provided with the attached order from the trial court in Tran which is Exhibit A to this order. The order in Exhibit A is also unclear as to whether or not the rules of civil procedure were applied in that case. It is of importance to this court whether or not all of the rules of civil procedure have been applied or invoked by the lower court in Tran either at the request of the parties or by the trial court pursuant to Rule 7.020(c) of the Florida Small Claims Rules. It would seem to this court that if all of the rules have been applied by the lower court, then it would logically follow that Rule 1.442 should apply and if the rules were not invoked, then the rule may not apply. Despite this, Florida Statute 768.79 would still apply because of the Tran decision. This court is bound by the First District Court of Appeal’s decision. In consideration thereof, it is
ORDERED AND ADJUDGED that the plaintiff’s Motion to Strike Defendant’s Proposal for Settlement Pursuant to Section 768.79, Florida Statutes, is denied. The court hereby finds good cause to grant the plaintiff’s Motion for Enlargement of Time, under Rule 1.090(b) Florida Rules of Civil Procedure, within which to respond to the defendant’s offer of judgment or proposal for settlement. The court will allow the plaintiff thirty (30) days from the date of this Order within which to respond to the defendant’s proposal.
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Exhibit
AIN THE COUNTY COURT IN AND FORESCAMBIA COUNTY, FLORIDA
JULIA TRAN HONG, CASE NO. 2001 SC 815
PLAINTIFF VS. STATE FARM FIRE AND CASUALTY COMPANY, DEFENDANT ORDER
THIS MATTER came on for hearing on the Defendant’s Motion To Suspend Operation Of Small Claims’ Rules And To Apply Rules of Civil Procedure To This Action Or, In The Alternative, For A Continuance and the Court, having considered the arguments of the parties, grants the Defendant’s request to continue the proceeding and denies that portion of the motion to suspend the Small Claims’ Rules. This matter is rescheduled to the trial week of July 30 for jury selection and July 31 for trial. A pretrial conference is set for 8:45 A.M. on Tuesday, July 24, 2001.
DONE AND ORDERED this 28th day of June, 2001, in chambers, at Pensacola, Escambia County, Florida.
/S/ William P. White, Jr.
WILLIAM P. WHITE, JR.
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