11 Fla. L. Weekly Supp. 961a
Insurance — Personal injury protection — Attorney’s fees — Proposal for settlement — Validity — Insurer’s proposal for settlement was defective and did not comply with offer of judgment statute or rule 1.442 particularity requirements where release included in proposal was ambiguous and could have affected medical provider’s legal rights in related lawsuits pending between provider and insurer — Appellate fees — Provider’s request for appellate attorney’s fees is denied where provider was not prevailing party in summary judgment below, and appeal filed by insurer was not frivolous or devoid of merit
NATIONWIDE ASSURANCE COMPANY, Appellant, v. MCM SUPPLY, INC., on behalf of Joyce S. Wynn, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1-03-42. L.C. Case No. CCO-01-8186. August 12, 2004. Appeal from County Court for Orange County, C. Jeffery Arnold, Judge. Counsel: Charles T. Cone (Tampa) and Mark D. Tinker (St. Petersburg), Fowler, White, Boggs, Banker, P.A, for Appellant. Mark D. Tinker, Fowler, White, Boggs, Banker, P.A., St. Petersburg, for Appellant. Amanda N. Gifford, Payas, Payas, Payas, LLP, Orlando, for Appellee.
(Before Conrad, Whitehead, and Rodriguez, JJ.)
ORDER AFFIRMING THE LOWER COURT’S ORDER
(PER CURIAM.) Appellant Nationwide Assurance Company (“Nationwide”) appeals the trial court’s final order rendered on August 21, 2003, in favor of MCM Supply, Inc. (“MCM Supply”), denying Nationwide’s entitlement to attorney’s fees and costs under section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(A).
Factual and Procedural Background
On January 19, 2001, Joyce Sinkler Wynn (“Wynn”) was involved in a motor vehicle accident wherein she sustained personal injuries. On May 4, 2001, and May 11, 2001, MCM Supply provided medical, rehabilitative, and remedial treatment, including medical supplies, to Wynn. MCM Supply also accepted an assignment of benefits from Wynn to bill Nationwide, Wynn’s auto insurance carrier, for the medical supplies. Upon receipt of the medical bills from MCM Supply, Nationwide requested additional documents from MCM Supply to determine its obligation to pay under the Florida’s Motor Vehicle No-Fault Law, section 627.736(1), Florida Statutes. On June 15, 2001, MCM Supply filed suit against Nationwide for failure to pay for the medical supplies in violation of the Florida’s Motor Vehicle No-Fault Law.
On January 8, 2002, Nationwide served a proposal for settlement on MCM Supply for $100.00 pursuant to section 768.79, Florida Statutes. On January 14, 2002, Nationwide moved for a summary judgment. On August 5, 2002, Nationwide filed its amended Motion for Summary Judgment. After hearing on the matter, the trial court granted Nationwide’s motion for summary judgment and reserved jurisdiction to consider Nationwide’s request to tax attorney’s fees and costs against MCM Supply. On August 16, 2002, Nationwide moved for a determination of its entitlement to attorney’s fees and costs under sections 768.79 and 57.041, Florida Statutes. On August 22, 2002, MCM Supply objected and moved to strike Nationwide’s proposal for settlement. On August 21, 2003, the trial court rendered an order denying both Nationwide’s motion for entitlement to attorney’s fees and costs, and MCM Supply’s motion to strike Nationwide’s proposal for settlement. This appeal ensued.
Standard of Review
Nationwide seeks to have this Court reverse the lower court’s order denying its entitlement to attorney’s fees and costs under section 768.79, Florida Statutes. “A proposal for settlement is in the nature of a contract.” See Jamieson v. Kurland, 819 So. 2d 267, 268 (Fla. 2d DCA 2002). Therefore, the standard of review for interpretation of a proposal for settlement pursuant to section 768.79 is subject to a de novo standard of review. Cascella v. Canaveral Port Authority, 827 So. 2d 308 (Fla. 5th DCA 2002); Racetrac Petroleum, Inc. v. Delco Oil, Inc., 721 So. 2d 376 (Fla. 5th DCA 1998).
Discussion
The sole issue on appeal is whether the lower court erred in denying Nationwide’s motion for attorney’s fees and costs under section 768.79, Florida Statutes. In determining whether the trial court erred in denying Nationwide’s entitlement to attorney’s fees and costs under section 768.79, this Court looks at the following: 1) whether Nationwide’s proposal for settlement was valid under section 768.79; and 2) whether the proposal complied with Florida Rule of Civil Procedure 1.442. We find that Nationwide’s proposal for settlement fails to comply with the requirements set forth under section 768.79, and Florida Rule of Civil Procedure 1.442.
Nationwide argues that the language in its proposal for settlement was sufficiently clear and unambiguous; therefore, the trial court should have enforced its rights to attorney’s fees and costs under section 768.79. To support its position, Nationwide contends that the proposal for settlement served on MCM Supply pursuant to section 768.79 was valid, and cites Tran v. State Farm Fire & Cas. Co., 860 So. 2d 1000 (Fla. 1st DCA 2003); Nichols v. State Farm Mutual, 851 So. 2d 742 (Fla. 5th DCA 2003); and U.S. Sec. Ins. Co. v. Cahuasqui, 760 So. 2d 1101 (Fla. 3d DCA 2000) for the proposition that section 768.79 authorizes proposal for settlement in PIP cases.
MCM Supply concedes that the offer of judgment statute found in section 768.79 applies to PIP cases, but disagrees that Nationwide’s proposal for settlement complied with the particularity requirements under the statute. See § 768.79, Fla. Stat. (2003). MCM Supply contends that Nationwide’s proposal was so facially ambiguous and vague that it prevented MCM Supply from comprehending the scope of the proposal or the contemplated release, thereby rendering the proposal unenforceable and invalid.
The requirements for a valid proposal for settlement are set forth in section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442. Section 768.79 provides in pertinent part that:
(1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability . . .
(2) The making of an offer of settlement which is not accepted does not preclude the making of a subsequent offer. An offer must:
(a) Be in writing and state that it is being made pursuant to this section.
(b) Name the party making it and the party to whom it is being made.
(c) State with particularity the amount offered to settle a claim for punitive damages, if any.
(d) State its total amount.
§ 768.79, Fla. Stat. (2003). In addition, Florida Rule of Civil Procedure 1.442(c)(2), which governs the form of the proposal, requires that the proposal must:
(A) name the party or parties making the proposal and the party or parties to whom the proposal is being made;
(B) identify the claim or claims the proposal is attempting to resolve;
(C) state with particularity any relevant conditions;
(D) state the total amount of the proposal and state with particularity all nonmonetary terms of the proposal;
(E) state with particularity the amount proposed to settle a claim for punitive damages, if any;
(F) state whether the proposal includes attorneys’ fees and whether attorneys’ fees are part of the legal claim; and
(G) include a certificate of service in the form required by rule 1.080(f).
Fla. R. Civ. P. 1.422(c)(2). (emphasis added). The language of the offer of judgment rule and statute must be strictly construed because they are in derogation of the common law. Connell v. Floyd, 866 So. 2d 90 (Fla. 1st DCA 2004).
In Nichols, 851 So. 2d at 742, State Farm tendered a proposal to settle plaintiff’s lawsuit. Id. at 745. The proposal stated that the “general release” would include “all claims, causes of action, etc., that would have accrued through the date” on which the insured accepted the proposal. Id. (emphasis added). The Fifth District Court of Appeal held that State Farm’s proposal was unenforceable because the proposed release language was overly broad and included vague words like “etcetera.” Id. at 746. Thus, the Fifth District Court found that the proposal failed to satisfy the particularity requirement of Florida Rule of Civil Procedure 1.442(c)(2)(C). Id. The Fifth District Court further held that “a proposal for settlement should be as specific as possible, leaving no ambiguities so that the recipient can fully evaluate its terms and conditions.” Id. at 746. (citation omitted). More importantly, the Fifth District Court noted that the general release requested as a condition of the proposal should not seek to extinguish the offeree’s claims that are extrinsic to the litigation. Id.
In the instant case, Nationwide’s proposal1 states that the offer, if accepted, would constitute “a complete release and dismissal with prejudice of those claims against Nationwide for any and all damages or other amounts claimed by the plaintiff to result from damage, breach of contract or other allegation brought within the above styled cause.” (emphasis added). The record shows that at the time of the proposal, MCM Supply had several other lawsuits against Nationwide pending before the lower court and arising from the same facts as the instant case.2 In fact, MCM Supply filed a motion to consolidate the three separate lawsuits that involved the same facts as the instant case four months prior to Nationwide tendering the proposal for settlement to MCM Supply.
In this case, the proposal tendered by Nationwide is ambiguous as to whether the contemplated release included claims extrinsic or not part of MCM Supply’s lawsuit. Specifically, the language in paragraphs 1 and 2 of Nationwide’s proposal is vague and unclear as to whether the scope of the settlement limits the proposed settlement to the instant matter. Paragraph 1 of the proposal states that the offer would settle all claims“including but not limited to, those damages named within its complaint, interest, attorney’s fees and costs.” (emphasis added). Likewise, paragraph 2 of the proposal purports to expand the scope of the settlement and release to“all claims for insurance coverage and any damages which may arise therefrom, including insurance benefits, interest, attorney’s fees and costs.” (emphasis added).
At the attorney’s fee hearing, the trial court held that Nationwide’s proposal was defective because Nationwide failed to confine and limit the release condition to the services rendered on the two dates by MCM Supply on May 4, 2001, and May 11, 2001.3 See Nichols, 851 So. 2d at 746 (emphasizing that a proposal for settlement “should be capable of execution without the need for further explanation or judicial interpretation”). As in Nichols, 851 So. 2d at 742, the proposal for settlement submitted by Nationwide did not meet the particularity requirements set forth in Florida Rule of Civil Procedure 1.442. The proposed language of the release could have affected MCM Supply’s legal rights in the related lawsuits between MCM Supply and Nationwide currently pending before the county court. Hence, we find that the scope of the settlement proposal by Nationwide not only included other lawsuits arising out of the same damage, contract, and allegations as the instant matter, but it also can be construed to extinguish other claims between MCM Supply, as assignee of Wynn, and Nationwide.
We find it unnecessary to address the argument as to whether the proposal for settlement by Nationwide was made in good faith because that issue was not raised below. Mt. Sinai Hospital of Greater Miami v. Steiner, 426 So. 2d 1154 (Fla. 3d DCA 1983) (holding that appellate review is limited to the specific grounds raised below); Tabasky v. Dreyfuss, 350 So. 2d 520, 521 (Fla. 3d DCA 1977).
Accordingly, we find that the lower court correctly concluded that Nationwide’s offer did not comply with the offer of judgment statute or Florida Rule of Civil Procedure 1.442, and therefore, Nationwide was not entitled to an award of attorney’s fees and costs under section 768.79, Florida Statutes. See Stern v. Zamudio, 780 So. 2d 155 (Fla. 2d DCA 2001) (stating that sanctions of section 768.79 were not enforceable where lump sum offer was defective).
Appellate Attorney’s Fees
Both parties have timely filed motions seeking an award of appellate attorney’s fees. Since Appellant Nationwide is not the prevailing party on appeal, its motion for appellate attorney’s fees is denied. Appellee MCM Supply has also requested an award of appellate attorney’s fees pursuant to sections 627.428 and 57.105, Florida Statutes, and Florida Rule of Appellate Procedure 9.410. Because MCM Supply was not the prevailing party in the summary judgment below, we find that section 627.428 is inapplicable. Additionally, we do not find that the appeal filed by Nationwide is frivolous or devoid of merit both on the facts and the law under section 57.105, and Florida Rule of Appellate Procedure 9.410. Hence, MCM Supply’s motion for appellate attorney’s fee is denied. See Allen v. Estate of Dutton, 384 So. 2d 171 (Fla. 5th DCA 1980).
Based upon the foregoing, it is hereby ORDERED AND ADJUDGED that the lower court’s order denying Nationwide’s motion for attorney’s fees and costs entered on August 21, 2003, is AFFIRMED.
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1The proposal for settlement offered by Nationwide states in pertinent part:
1.The Defendant NATIONWIDE proposes settlement to the Plaintiff, MCM SUPPLY, INC., o/b/o JOYCE WYNN, for the total amount of One Hundred Dollars ($100.00) regarding and specifically directing all claims for personal injury protection benefits which MCM SUPPLY, INC. alleges to result from its treatment to JOYCE WYNN in the above-referenced cause, including, but not limited to, those damages named within its complaint, interest, attorney’s fees and costs.
2. Specifically, NATIONWIDE hereby offers to settle all claims for insurance coverage and any damages which may arise therefrom including insurance benefits, interest, attorney’s fees and costs.
4. This offer cannot be accepted except in exchange for a complete release and dismissal with prejudice of those claims against NATIONWIDE for any and all damages or other amounts claimed by the Plaintiff to result from damage, breach of contract or other allegation brought within the above styled cause.
(emphasis added).
2MCM Supply’s two other lawsuits against Nationwide alleged that Nationwide failed to pay for services rendered to Wynn on January 26, 2001, and also from February 26, 2001, through March 16, 2001.
3Nationwide could have requested leave of court to amend its proposal for settlement to correct any ambiguity that might have existed in the original proposal to comport with the particularity requirements set forth in Florida Rule of Civil Procedure 1.442. As is evident from the record, that was not done in this case.
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