12 Fla. L. Weekly Supp. 802a
Attorney’s fees — Insurance — Personal injury protection — Proposal for settlement — Validity — Language in proposal for settlement stating payment of proposed sum is intended to resolve any and all claims insured has or could have asserted in action arising out of or relating to services rendered to insured is valid condition in nature of general release and does not include claims arising in future — It is not inappropriate to include amount for attorney’s fees as inclusive within offered amount — Motion to tax fees and costs granted
LORNA GRANT, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 05-2354 COCE 53. March 28, 2005. Robert W. Lee, Judge. Counsel: Vincent Rutigliano, Hollywood. Matt Hellman, Matt Hellman, P.A., Plantation.
ORDER GRANTING DEFENDANT’S
MOTION TO TAX ATTORNEY’S FEES AND COSTS
THIS CAUSE came before the Court on March 17, 2005 for hearing of the Defendant’s Motion to Tax Attorney’s Fees and Costs, and the Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises the Court finds as follows:
Background:
1. On March 7, 2005, the Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, received a Final Judgment in favor of the Defendant, denying recovery to the Plaintiff in the above titled action.
2. Prior to judgment, Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, timely served its Proposal for Settlement which was filed on December 21, 2004, as specified under Fla. Stat. §768.79 and F.R.C.P. 1.442.
3. F.R.C.P. 1.442(a) & (f) provide in pertinent part:
“(a) 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; [. . .] (f) a proposal shall be deemed rejected unless accepted by delivery of a written notice of acceptance within 30 days after service of the proposal. The provisions of rule 1.090(e) do not apply to this subdivision. No oral communications shall constitute an acceptance, rejection, or counteroffer under the provisions of this rule.
4. Fla. Stat. §768.79 provides in pertinent part:
“In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment that 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 the filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award.”
5. Therefore, pursuant to Fla. Stat. §768.79, Florida Rules of Civil Procedure 1.442, and Fla. Stat. §57.104, the Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, argues that it is entitled to recovery of their attorney’s fees and costs incurred in defense of this matter.
6. Furthermore, pursuant to the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions, and Chapter 57 of the Florida Statutes, Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, argues that it, as the prevailing party, is entitled to recover its legal costs. These costs include: (1) the expense of the court reporter per diem and for transcribing depositions and court proceedings; (2) the costs for witnesses and subpoena fees; (3) the document production costs of disinterested witnesses; and (4) reasonable expert fees.
7. The language at issue in the Proposal for Settlement is that the payment of the proposed sum is “intended to resolve any and all claims which Lorna Grant has or could have asserted in this action arising out of or relating to the services allegedly rendered to Lorna Grant [. . .] inclusive of any attorney’s fees, costs, interest and any other monetary amount.”
8. The Complaint involved a claim for unpaid PIP benefits.
9. The Plaintiff argues that the offer of settlement creates a conflict between the attorney and client by combining the damages and fee award, and as a result, the Plaintiff concludes that the Proposal for Settlement is therefore impermissibly broad.
Conclusions of Law. A proposal for settlement is invalid as a whole if it contains a condition which is invalid. Zalis v. M.E.J. Rich Corp., 797 So.2d 1289, 1291 (Fla. 4th DCA 2001). A condition is invalid if it is not stated “with particularity.” Id. at 1290. In Zalis, the appellate court declared invalid a condition which was incapable of having a “reasonable estimate” assigned to it. The condition at issue was one which waived “any future action against the defendant or anyone associated with him.” Importantly, there was nothing that limited the “future action” to conduct arising out of the lawsuit.
In deciding whether a proposal for settlement is ambiguous, the court must consider whether the recipient is able to “fully evaluate its terms and conditions.” Lucas v. Calhoun, 813 So.2d 971, 973 (Fla. 2d DCA 2002). Nevertheless, if a proposal for settlement includes a condition which is in the nature of a general release, the condition is not invalid. See Board of Trustees of Florida Atlantic University v. Bowman, 853 So.2d 507 (Fla. 4th DCA 2003). In Bowman, the general release required the plaintiffs “to release all claims against Defendant, not just claims raised by the suit, and required plaintiffs to release all claims against third parties to the action.” Id. at 509. The appellate court held that “[t]hese factors are typical of a ‘general release’ and do not invalidate the Proposals for Settlement.” Id. The distinguishing fact for the appellate court was that a general release does not release a party for claims “accruing in the future.” Rather, it is limited to claims “up to” a present date. See id. at 510. See also Ambeca, Inc. v. Marina Cove Village Townhome Association, Inc., 880 So.2d 811, 813 (Fla. 1st DCA 2004) (distinguishing between “present tense” claims and future claims). In Ambeca, the appellate court approved release language which “may require releases for claims not raised or set forth in the pleadings [when] it does so only to the extent those claims would arise from the facts giving rise to the underlying litigation.” Id. at 813.
Turning to the facts of the instant case, it is clear to the Court that the condition at issue in the Proposal for Settlement is valid. The language used is in the nature of a general release. Although the language uses the phrase “could have asserted,” it is limited to those arising out of the services rendered to the Plaintiff under the complaint. The proposal does not include claims arising in the future. Moreover, it is not inappropriate to include an amount for fees as inclusive within the offered amount. See Medical Billing Solutions, Inc. v. Diabetic MedServ, Inc., 727 So.2d 1066, 1067 (Fla. 4th DCA 1999). Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion to Tax Attorney’s Fees and Costs is GRANTED. The Defendant is entitled to an award of fees for reasonable hours incurred from December 21, 2004 to the date of this Order. If the parties are unable to agree on the amount, the Defendant may request the matter be set for evidentiary hearing under cover of letter with attached affidavits. The Court will not set the matter for hearing unless a supporting affidavit is first provided setting forth a detailed breakdown as to description, provider, time, and hourly rate.
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