11 Fla. L. Weekly Supp. 738a

Insurance — Personal injury protection — Small claims — Proposal for settlement — Insurer’s proposal for settlement is stricken where parties agreed at pre-trial conference in small claims PIP action to invoke rules of civil procedure except rule 1.442 and corresponding section 768.79, insurer requested and medical provider objected to invocation of the rule and statute, and insurer filed motion to invoke rule 1.442 but did not schedule motion for hearing — While proposal for settlement may be available in small claims PIP suit, party is obligated to follow appropriate procedure to activate or apply statute and rule

LAWRENCE ROBINSON, M.D. and/or d/b/a ORTHOPAEDICS OF BREVARD, and LAWRENCE ROBINSON, M.D. and/or d/b/a ORTHOPAEDICS OF BREVARD as an Agent and/or assignee of JOSEPH DEMARCO, assignor principle and/or as Third Party Beneficiary, Plaintiff, v. PROGRESSIVE CASUALTY INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Brevard County, Small Claims Division. Case No. 05-2003-SC-63292-XXXX-XX. March 3, 2004. Kenneth Friedland, Judge. Counsel: Scott R. Dwyer and Amy M. Romaine, Scott R. Dwyer, P.A., Melbourne, for Plaintiff. Joseph Peduzzi.

ORDER

THIS CAUSE, having come before this Court, on this 26th day of February 2004, pursuant to Plaintiff’s, Motion to Strike Defendant’s Proposal for Settlement, and this Court having reviewed the pleadings, the arguments of counsel, and legal citations of authority and otherwise being fully advised in the premises, it is therefore;

ORDERED and ADJUDGED:

1. Plaintiffs’s Motion to Strike Defendant’s Offer of Judgement and Proposal for Settlement (hereinafter “O.J.”) is Granted. This Court finds that Defendant’s O.J. submitted pursuant to §1.442 Fl. R. Civ. Pro. and §768.79 Fla. Stat. is inapplicable to a Small Claims action absent a prior invocation of §1.442 Fl. R. Civ. Pro. This rule applies to all proposals for settlement authorized by Florida law, regardless of the terms used to refer to such offers, demands, or proposals, and supersedes all other provisions of the rules and statutes that may be inconsistent with this rule. See, §1.442(a) Fl. R. Civ. Pro. (2003).

2. Defendants, assertion that it is being deprived of a substantive right to make an O.J. under §768.79 Fla. Stat. is unfounded. This Court is bound by the decision of the Fifth District Court of Appeals in Nichols, that an O.J. brought pursuant to §768.79 Fla. Stat. and §1.442 Fl. R. Civ. Pro. is applicable in a No-Fault Benefit or PIP suit. See, Nichols v. State Farm Mutual, 851 So.2d 742 (Fl. App. 5th DCA 2003).

3. However, in order for a party to avail itself of any statutory or procedural right, that party is obligated to follow the appropriate procedure to activate or apply that statute or rule of procedure. The procedural requirements must be carefully and specifically followed if the statute is in degradation of Common Law. The courts have clearly and consistently held that §768.79 Fla. Stat., and the intertwined §1.442 Fl. R. Civ. Pro. are in degradation of Common Law. See, Hibbard v. McGraw, 862 So.2d 816 (Fl. App. 5th DCA 2003); Hilyler Sod, Inc. v. Willis Shaw Express, Inc., 817 So.2d 1050 (Fl. App. 1st DCA 2002); and Schussel v. Ladd Hairdressers, Inc., 736 So.2d 776 (Fl. App. 1st DCA 2002). Although the Offer of Judgement may be available in a PIP Suit, it is not valid unless procedurally correct. Just as a party would have no “right” to a Summary Judgement unless the opposing party had the procedural minimum 20 day notice prior to the hearing Finn v. Lee County, 479 So.2d 246 (Fl. App. 2nd DCA 1985), nor does a party have any “right” nor claim to effectuate an O.J. unless it is procedurally valid. Failure to strictly follow the dictates and procedural requirements of §768.79 Fla. Stat. and §1.442 Fl. R. Civ. Pro. void the O.J. without regards to the merits of the proposal. Schussel v. Ladd Hairdressers, Inc., 736 So.2d 776 (Fl. App. 1st DCA 2002) (O.J. less than 45 days prior to the trial docketing invalid, regardless of date trial actually commenced. A continuance had not “breathed life back into an otherwise untimely offer of judgement”); Hibbard v. McGraw, 862 So.2d 816 (Fl. App. 5th DCA 2003) (Virtually any proposal that is ambiguous is not enforceable).

4. Plaintiff filed the instant case within the County Court, Small Claims Jurisdiction. This case is not governed by the Florida Rules of Civil Procedure, but by the Florida Small Claims Rules §7.010 et. seq., which specifically promote “the simple, speedy, and inexpensive trial of actions at law in County Courts”. See §7.010(a) Fl. Sm. Cl. R.

5. The Florida Small Claims Rules of Civil Procedure enumerate those and only those Rules of Civil Procedure that apply to actions in Small Claims. §7.020(a) Fl. Sm. Cl. R. (the rules of procedure that apply are 1.090(a), (b) and (c); §1.190; §1.210(b); §1.200; §1.410; and §1.560). Where there is a stipulation by all-parties; application of any party; or the Courts own motion, the Court has the discretion to apply one or more additional rules of procedure to the action. §7.020(c) Fl. Sm. Cl. R. Until such time as the court has exercised that discretion and entered an order to that effect, any rule of procedure not listed in §7.020(a) does not apply in Small Claims Jurisdiction. A party may not bypass the Courts discretion, nor lead or preordain the Courts future decision. Regardless of what the Court may ultimately decide, any premature use of Offers of Judgement and/or Proposals of Settlements is void and must be stricken. It would be not only extremely prejudicial to the plaintiff for the Court to allow the O.J. to remain a potential threat, if the Courts do not act to cure the abuse of the Small Claims process, a chilling effect upon a claimant’s right to PIP benefits, could result. See, Smith v. State Farm, 7 Fla. L. Weekly Supp. 212 a (10th Cir. Dec. 21, 1999).

6. In the instant action at pre-trial conference, both parties agreed to invoke the Florida Rules of Civil Procedure with the exception of Rule §1.442 and the corresponding §768.79 Fla. Stat. Defendant further requested, and Plaintiff specifically objected, to invoke §1.442 Fl. R. Civ. Pro. and §768.79 Fla. Stat. Following the pre-trial conference, Defendant filed a motion to invoke §1.442 Fl. R. Civ. Pro., but did not schedule this motion for hearing. Defendant then, without leave of the Court, served Plaintiff with a Proposal for Settlement pursuant to §768.79 Fla. Stat. and §1.442 Fl. R. Civ. Pro., which Plaintiff immediately moved to strike.

7. Therefore, Defendant’s Proposal for Settlement is stricken as falling outside the scope of the Rules applicable to this action. In making this finding, the Court further looked to persuasive authority from other jurisdictions, as well as an unpublished order in this eighteenth judicial circuit. See, Vicon P.A. v. State Farm Mutual Auto. Ins. Co., 9 Fla. L. Weekly Supp. 53a (Fl. 9th Jud. Cir. 2001); Chessher v. State Farm Mutual Auto. Ins. Co., 8 Fla. L. Weekly Supp. 245a (Fl. 1st Jud. Cir. 2001); and Croton Chiropractic v. Nationwide Mutual Ins. Co., Case No. 05-2002-SC-028631 (Fl. 18th Jud. Cir. 2003 Honorable Cathleen B. Clarke).

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