12 Fla. L. Weekly Supp. 1092a
Attorney’s fees — Insurance — Personal injury protection — Proposal for settlement — Small claims — Insurer’s motion to tax attorney’s fees and costs is denied where rule 1.442 was never invoked, proposal for settlement was not timely filed due to failure to add five-day mailing period, and section 768.79 cannot apply as it must be read in conjunction with rule 1.442 — Prevailing party — Medical provider is prevailing party entitled to fee award where provider did not prevail on every issue but did prevail on significant issue of reasonableness, relatedness and necessity of treatment
CARE THERAPY & DIAGNOSTICS, INC., (As assignee of Emanuel Hernandez), Plaintiff, vs. BRISTOL WEST INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Small Claims. Case No. 02-13616 SC, Division I. August 23, 2005. Charlotte W. Anderson, Judge. Counsel: Timothy A. Patrick, for Plaintiff. Matthew Felix, for Defendant.
[Reversed at 18 Fla. L. Weekly Supp. 35a.]
AMENDED FINAL JUDGMENT
THIS CAUSE having come before the court on July 29, 2005 on Plaintiff’s Motion To Tax Attorney’s Fees and Costs and Defendant’s Motion to Tax Attorney’s Fees and Costs. Timothy Patrick, Esquire appearing for Plaintiff and Matthew Felix, Esquire appearing on behalf of Defendant, and the Court, having heard argument from counsel and being fully advised in the premises, rules as follows:
It is ORDERED and ADJUDGED that:
1. Defendant’s Motion to Strike Plaintiff’s Memorandum of Law is HEREBY DENIED.
2. Defendant’s Motion to Tax Attorney’s Fees and Costs is HEREBY DENIED based upon the following reasons announced in open court.
3. Both parties agree that Rule 1.442 of the Florida Rules of Civil Procedure was never invoked in this case.
4. Defendant’s Proposal for Settlement was not timely filed as Defendant did not add five (5) days to said proposal. Rule 1.090(e) of the Florida Rules of Civil Procedure addresses additional time after service by mail.
5. The court cannot see any way for Florida Statutes Section 768.79 to apply as it must be read in conjunction with Rule 1.442 of the Florida Rules of Civil Procedure; These rules, being in derogation of common law, must be strictly construed.
6. The Plaintiff prevailed on a significant issue, that is the reasonableness, necessity and relatedness of treatment per the Verdict Form. It is not required that the Plaintiff prevail on every issue. Thus, Plaintiff is the prevailing party.
7. Plaintiff’s Motion to Tax Attorney’s Fees and Costs is HEREBY GRANTED.
8. Plaintiff is entitled to attorney’s fees and costs incurred in litigating this action, pursuant to Florida Statutes sections 627.736(8) and 627.428.
9. This court reserves jurisdiction as to determine the amount of Plaintiff’s attorney’s fees and costs.
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