11 Fla. L. Weekly Supp. 125b
Small claims — Insurance — Proposal for settlement — Application of Rule 1.442, Florida Rules of Civil Procedure to small claims actions would undermine purpose and intent of Florida Small Claims Rules — Defendant’s motion to apply rules of civil procedure granted except for Rule 1.442
MARK PIERCE CHIROPRACTIC CLINIC, As Assignee of KAYLA BENNETT, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 2001-6696-SP. Division CC-O. April 2, 2002. Ronald P. Higbee, Judge. Counsel: James A. Farson, Jacksonville. Raymond L. Roebuck, Jacksonville.
ORDER PARTIALLY GRANTING DEFENDANT’S MOTION TO INVOKE THE RULES OF CIVIL PROCEDURE
This matter came before the court on the defendant’s Motion to Invoke the Rules of Civil Procedure. The court having heard arguments of counsel for the defendant and counsel for the plaintiff and having reviewed the authorities cited to the court and cited herein finds that:
1. Florida Small Claims Rule 7.020(a) lists specifically the Florida Rules of Civil Procedure which are applicable to actions in small claims cases. Subsection (b) lists discovery rules that shall apply and how they shall apply as set forth in that rule. Subsection (c) of Rule 7.020 provides: “In any particular action, the court may order that action to proceed under 1 or more additional Florida Rules of Civil Procedure on application of any party or the stipulation of all parties or on the court’s own motion”.
2. An issue before this court is whether or not to apply Florida Rule of Civil Procedure 1.442, Proposals for Settlement. The authorities cited by the parties are U.S. Security Insurance Co. v. Cahuasqui, 760 So.2d 1101 (Fla. 3rd DCA 2000) and an article in the Florida Bar Journal dated April 2001 entitled “Proposals for Settlement in PIP Cases: Should U.S. Security Insurance Co. v. Cahuasqui be Overturned?” by Robert N. Heath, Jr. The Cahuasqui case at first blush would seem to dictate that Florida Rule of Civil Procedure 1.442 be applicable in small claims cases. However, this court in determining the history of the Cahuasqui case found that the Cahuasqui case did not originate in small claims court but rather it was a county civil case. Therefore, the issue in Cahuasqui was not whether to apply Florida Rule of Civil Procedure 1.442 in a small claims case but whether a plaintiff could be liable for attorney’s fees because of an application of Florida Rule of Civil Procedure 1.442 in light of Florida Statute 627.428(1) which permits a court to award attorney’s fees to the prevailing “insured” exclusively and not to a prevailing insurance company. In Cahuasqui the court did apply Florida Rule of Civil Procedure 1.442. However, as set forth above, that was not a small claims action. This court finds that, due to the nature of small claims actions, the application of Florida Rule of Civil Procedure 1.442 would undermine the purpose and intent of the Florida Small Claims Rules and therefore the defendant’s motion is granted to the extent that the Florida Rules of Civil Procedure will apply to this action except for Rule of Civil Procedure 1.442.
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