11 Fla. L. Weekly Supp. 443a
Insurance — Personal injury protection — Small claims — Attorney’s fees — Proposal for settlement — Motion to strike proposal for settlement/offer of judgment filed pursuant to section 768.79 in small claims PIP action is denied — There is insufficient showing that offer has not been made in good faith to grant motion to strike on that basis
PT FIRST REHABILITATION SERVICES, INC., as assignee of SUZANNE MYATT, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 2003-SC-10349. Division CC-J. March 4, 2004. Eleni Elia Derke, Judge. Counsel: D. Scott Craig, Farah, Farah & Abbott, P.A., Jacksonville, for Plaintiff. Ellen C. Pappas, McFarlain & Cassedy, P.A., Tallahassee, for Defendant.
ORDER DENYING PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S PROPOSAL FOR SETTLEMENT/OFFER OF JUDGMENT
This cause came on to be heard upon Plaintiff’s Motion to Strike Defendant’s Proposal for Settlement/Offer of Judgment. Present before the Court appeared counsel for Plaintiff, D. Scott Craig, Esquire, and Ellen Pappas, Attorney for Defendant. The Court heard arguments of counsel and after having considered same and legal authority presented by both parties, the Court finds that:
A. This action is a summary claim action which was filed by Plaintiff seeking damages for Defendant’s failure to properly pay for the plaintiff’s medical treatment under her No Fault Insurance Benefits (PIP).
B. This cause went to pretrial-hearing, pursuant to the Rules of Florida Small Claims Rules on October 30, 2003. Thereafter, the Defendant apparently served an Offer of Judgment to Plaintiff.
C. On January 16, 2004, the Plaintiff served on Defendant his Motion to Strike Defendant’s Proposal for Settlement/Offer of Judgment and Motion to Enlarge Time to Respond to Proposal. The Defendant also filed a Response to Plaintiff’s Motion to Strike. A Hearing was held on January 27, 2004.
D. The Plaintiff argues that (1) the Defendant’s proposal for settlement is not made in good faith, (2) that Florida Section 768.79 should not be applied to insurance cases, and (3) that proposals for settlements are not permitted under the Florida Small Claims Rules and the Rule of Civil Procedure 1.442 must apply in order for a proposal to be validly served. Plaintiff also asked the Court to enlarge the time in which to respond to the Defendant’s offer of judgment should the Motion to Strike be denied. Defendant argued that the Court should deny the Motion to Strike because the Plaintiff could not prove lack of good faith as the amount at issue is only $155.20 and is based on the calculation of the risk factor if Plaintiff pursues this action to trial. Additionally, the Defendant argues that Florida Statute Section 768.79 is applicable to PIP cases pursuant to the First District Court decision in Tran v. State Farm Fire & Cas. Co., 860 So.2d 1000 (Fla. 1st DCA 2003) and that Florida Rules of Civil Procedure 1.442, which governs the procedure for serving proposals for settlement, will be applicable, regardless of whether or not the County Court has entered an order specifically applying that rule to summary claim cases.
E. The Plaintiff maintains that the First District Court of Appeals’ decision in Tran, supra, cannot be read to stand for the proposition contained in the first sentence of the brief per curiam opinion: “Section 768.79, Florida Statutes, applies to cases brought pursuant to Section 627.736, Florida Statutes, and to cases pending in Small Claims Court.” This Court, however, disagrees. The First District Court of Appeal in Tran, supra, cites to the decisions of the Third and Fifth District Court of Appeal which held that an insurer may recover attorney fees under the offer of judgments statute and rule in an action brought by the insured to recover PIP benefits. (See Nichols v. State Farm Mutual, etc., 851 So.2d 742 (Fla. 5th DCA 2003); and, U.S. Security Insurance Co. v. Cahuasqui, 760 So.2d 1101 (Fla. 3rd DCA 2000), Rev. Dismissed as Improvidently Granted by 796 So.2d 532 (Fla. 2001). Therefore, the Plaintiff’s Motion to Strike the Defendant’s offer or proposal for settlement should be denied. At this time the Court further finds that there has not been a sufficient showing that the offer has not been made in good faith. Therefore the Motion to Strike based upon that reason is DENIED, without prejudice.
F. Having ruled that the Plaintiff’s Motion to Strike should be 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 Defendant’s offer of judgment or proposal of settlement. The Court will allow the Plaintiff twenty (20) days from the date of this Order within which to respond to the Defendant’s proposal.
For the above stated reasons, it is hereby
ORDERED AND ADJUDGED:
1. That the Plaintiff’s Motion to Strike Defendant’s Proposal for Settlement is hereby DENIED.
2. That the Plaintiff’s Motion to Enlarge Time within which to respond to Defendant’s Proposal for Settlement is hereby GRANTED.
3. That the Plaintiff shall respond to the Defendant’s Proposal for Settlement within twenty (20) days from the date of this order.
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