11 Fla. L. Weekly Supp. 143a
Insurance — Personal injury protection — Attorney’s fees — Proposal for settlement — Argument that proposal for settlement should be stricken because it does not specifically delineate how much of the amount offered is for medical bills and interest and how much is for attorney’s fees and costs is rejected — Argument that proposal is invalid because it was not made in good faith, as evidenced by use of same form used by defense firm in every PIP case and fact that amount offered does not even cover costs of litigation and bore no reasonable relationship to amount of damages or realistic assessment of liability, is rejected — Insurer may recover attorney’s fees under proposal for settlement statute in action brought to recover PIP benefits — Question certified
LAKE WORTH PHYSICAL THERAPY CORPORATION (Carol Tarble), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. SS-02-025448-RD. December 8, 2003. Charles Burton, Judge. Counsel: Glenn E. Siegel, Kane & Kane, P.A., Boca Raton, for Plaintiff. Heather A. Wallace, Williams, Leininger & Cosby, P.A., West Palm Beach, for Defendant.
Order Granting Defendant’s Motion to Tax Attorney’sFees and Costs Pursuant to its Proposal for Settlement
This action was heard on November 14, 2003 on Defendant’s Motion to Tax Attorney’s Fees and Costs Pursuant to its Proposal for Settlement. This Court, being fully advised in the premises finds as follows:
1) This lawsuit involves a claim for Personal Injury Protection (P.I.P.) benefits by virtue of an alleged assignment of benefits obtained by the Plaintiff, Lake Worth Physical Therapy Corporation, from the insured, Carol Tarble.
2) This Court previously granted Defendant’s Motion for Summary Judgment pertaining to this alleged Assignment of Benefits. As a result, the Defendant filed this Motion to Tax Attorneys Fees anal Costs pursuant to a Proposal for Settlement it filed in this case.
3) The Plaintiff argued that this Proposal for Settlement should be stricken because the Proposal does not specifically delineate how much of the $100.00 proposal is for medical bills and interest, and how much is for attorney’s fees and costs. This Court hereby rejects this argument.
4) The Plaintiff also argued that this Proposal is invalid because it was not made in good faith, as it is the same form Proposal that this Defendant/Defense Firm files in every P.I.P. case in which it files a proposal for settlement, and that this figure offered does not even cover the costs expended in the litigation of this case. Plaintiff therefore argued that the Defendant’s Proposal was not made in good faith, and could not be a basis for an award of costs and attorney’s fees, because “the offer bore no reasonable relationship to the amount of damages or realistic assessment of liability.” Eagleman v. Eagleman, 673 So.2d 946 (Fla. 4th DCA 1996). This Court also rejects this argument.
5) Plaintiff also argued that Fla. Stat. § 627.428 creates a one-way-street for attorney’s fees, thereby precluding the Defendant’s proposal for settlement. Thus Court hereby follows the prior decisions in Nichols v. State Farm Mutual, Etc., 851 So.2d 742 (Fla. 5th DCA 2003); and U.S. Security Ins. Co. v. Cahuasqui, 760 So.2d 1101 (Fla. 3rd DCA 2000) and finds that an automobile insurer may recover attorney’s fees under the proposal for settlement/offer of judgment statute Fla.R.Civ.Pro. 1.442 and Fla. Stat. §768.79 in an action brought by the Plaintiff to recover P.I.P. benefits. In recognizing that the Nichols and Cahuasqui cases were decided in split opinions, this Court follows suit of those two opinions and certifies the following question of great public importance:
May an insurer recover attorney’s fees under Fla.R.Civ.Pro. 1.442 and Fla. Stat. § 768.79 in an action, brought by a medical provider by virtue of an alleged assignment of benefits, to recover P.I.P. benefits under the policy of insurance issued to the insured?
6) Therefore, it is hereby ORDERED and ADJUDGED that Defendant’s Motion to Tax Attorney’s Fees and Costs is GRANTED, with this Court reserving jurisdiction to determine the amount of Defendant’s entitlement to attorney’s fees and costs at the evidentiary hearing.
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