12 Fla. L. Weekly Supp. 607a
Insurance — Personal injury protection — Res judicata — Appeal of dismissal of subsequent suit involving same accident and injuries involved in prior suit — Where order enforcing settlement of first suit clearly does not provide that resolution of matter was without right to further proceedings by medical provider, and trial court determined that settlement covered only those bills incurred through certain date and second suit could proceed as to bills incurred after that date, doctrine of res judicata does not bar second suit — Error to dismiss suit
OSAMA YOUSSEF, Appellant/Cross Appellee, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee/Cross-Appellant. Circuit Court, 6th Judicial Circuit (Appellate) in and for Pinellas County. Case No. 03-1775CI-88B. UCN 522003AP001755XXXXCV. October 14, 2004. Appeal from Final Judgment, Pinellas County Court, Judge William B. Blackwood. Counsel: Earl I. Higgs, Jr., Morgan, Colling & Gilbert, P.A., Orlando, for Appellant/Cross-Appellee. Jennifer M. Mandelbaum, Ramey, Ramey & Kampf, Tampa, for Appellee/Cross-Appellant.
ORDER AND OPINION
(DAVID A. DEMERS, J.) This matter is before the Court on consolidated appeals filed by Osama Youssef (Youssef) and State Farm Mutual Automobile Insurance Company (State Farm) from the Final Judgment and Order entered on June 25, 2003, granting State Farm summary judgment but denying it attorney’s fees. Having reviewed the briefs, the record, and pertinent legal authority, this Court reverses the trial court’s award of summary judgment to State Farm. However, this Court affirms the trial court’s denial of State Farm’s attorney’s fees.1
The long and winding path of this matter began when Youssef, who had been injured in an automobile accident, sued his insurer, State Farm, over its withdrawal of Personal Injury Protection (PIP) benefits (Youssef I). State Farm based the withdrawal upon independent medical examinations (IME) that determined that additional treatment was not warranted.
Pursuant to Florida Statutes, § 768.79 (1999), State Farm made an Offer of Judgment/Proposal of Settlement to Youssef, which Youssef promptly accepted. However, Youssef never cashed the check State Farm forwarded to him, and on March 2, 2000, he filed the present lawsuit (Youssef II), essentially alleging the same matters as in the first lawsuit, although presenting additional bills for which he claimed entitlement to payment.
Believing Youssef II to be duplicative of Youssef I, State Farm filed a $100.00 Offer of Judgment in Youssef II, which Youssef rejected. State Farm then filed a Motion to Enforce Settlement in Youssef I, which the trial court granted on October 22, 2002. In its order, the trial court found that Youssef’s acceptance of the Offer of Judgment/Proposal of Settlement constituted a “settlement on the merits” of Youssef I. The court further determined that the settlement encompassed all bills through July 8, 1999, and therefore that “no bills may be at issue in the current proceedings [Youssef II] for benefits or bills incurred prior to July 9, 1999.” The court also reserved jurisdiction to address other matters in Youssef II, including State Farm’s pending motion for summary judgment.
In its summary judgment motion, State Farm argued that Youssef II was barred by the doctrine of res judicata because the claims alleged in Youssef II had already been settled in Youssef I. The trial court granted State Farm’s motion, agreeing with State Farm that this Court’s decision in Erickson v. State Farm Mut. Auto. Ins. Co., No. 01-0670-CI-88A (Fla. 6th Cir. Ct. Dec. 20, 2001) controlled. In Erickson, this Court held that where the order settling a first PIP suit was clearly intended to resolve all matters regarding the medical treatment at issue, res judicata barred a second PIP suit involving the same accident and injuries.
As it did at the trial level, State Farm asserts that Erickson governs this matter and mandates dismissal. However, after carefully reviewing Erickson and comparing its factual and procedural history to the present case, this Court concludes that res judicata does not apply to this matter because the order in Youssef I did not resolve all issues concerning Youssef’s medical treatment.
Erickson, like Youssef, filed suit against State Farm for PIP benefits she had been denied. Just prior to trial, Erickson accepted State Farm’s settlement proposal, but she refused to execute a release and then sought to amend her complaint to sue for additional PIP benefits. State Farm then moved to enforce the settlement.
The trial court granted State Farm’s motion, finding that “when Plaintiff accepted the offer of settlement, Defendant’s obligations to provide PIP benefits to this Plaintiff arising out of any claims from the . . . accident were fully litigated, compromised and settled.” Erickson v. State Farm Mutual Auto. Ins. Co., No. 96-009360-CO-039 (Fla. Pinellas Co. Ct. April 15, 1999). The court further determined that “the issues of this case have been resolved” and deemed “this matter concluded.” Id.
The court essentially reiterated its position in its order denying Erickson’s motion for rehearing, stating that “the concepts of res judicata and collateral estoppel prohibit the same issues from being litigated, again and again. This dispute simply must come to an end.” The court also noted that once any remaining fee and cost issues were resolved, it would dismiss the case. Erickson v. State Farm Mutual Auto. Ins. Co., No. 96-009360-CO-039 (Fla. Pinellas Co. Ct. Sept. 10th, 1999).
Erickson did not appeal this order; however, again like Youssef, she filed an entirely new complaint seeking recovery for bills stemming from her accident. After the trial court dismissed this complaint, she appealed to this Court.
In affirming the dismissal of the second suit, this Court noted that for res judicata to apply, it must be clear that the court in the first suit intended that the resolution of that suit was to be “without right to further proceedings by the plaintiff.” Erickson v. State Farm Mut. Auto. Ins. Co., No. 01-0670-CI-88A, slip op. at 3 (Fla. 6th Cir. Ct. Dec. 20, 2001) (citing Equitable Fire & Marine Ins. Co. v. Bradford Builders, Inc., 174 So. 2d 44, 45 (Fla. 3d DCA 1965)). This Court found that the order denying rehearing in the Erickson’s first suit met this standard because its entry clearly “constituted an end to the judicial labor in the cause of action in Case I and was intended to be a complete disposition of the issues raised regarding all dental treatment received by the Appellant stemming from the . . . accident.” Id. (citing S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974)). Thus, this Court determined that the dismissal of Erickson’s second complaint was appropriate because she was simply attempting to relitigate the same issues that had already been adjudicated in her first case.
On the surface, the facts of Erickson appear strikingly similar to the facts in the present matter. However, a comparison of the orders terminating Erickson’s first suit with the order terminating Youssef’s first suit reveals significant differences making the doctrine of res judicata inapplicable here. While the trial court in Erickson specifically stated that the settlement of the first case concluded the matter and that the litigation “must come to an end,” the Order Enforcing Settlement of Youssef I specifically states
Based on the parties’ stipulation during hearing, this Court finds that all benefits incurred by Plaintiff up through and including July 8, 1999, are included in the prior settlement. Therefore, this Court finds that no bills may be at issue in the current proceedings for benefits or bills incurred prior to July 9, 1999.
Further, the trial court reserved jurisdiction over Youssef II to address other issues “including the parties’ summary judgment motions.”
Thus, the Order Enforcing Settlement of Youssef I clearly does not provide that the resolution of that matter was “without right to further proceedings by the plaintiff.” On the contrary, the trial court determined that the settlement of Youssef I covered only those bills incurred up through July 8, 1999, and that Youssef II could proceed as to bills incurred after that date. Consequently, the doctrine of res judicata does not bar Youssef II, and the trial court erred in dismissing this action on that basis.2
Therefore, it is
ORDERED AND ADJUDGED that the Final Judgment is reversed insofar as it grants summary judgment to Appellee/Cross Appellant, State Farm Mutual Automobile Insurance Company, and that this matter is remanded for further proceedings consistent with this Order.
It is further
ORDERED AND ADJUDGED that the Final Judgment is affirmed insofar as it denies attorney’s fees to Appellee/Cross Appellant, State Farm Mutual Automobile Insurance Company.
It is further
ORDERED AND ADJUDGED that Appellee/Cross Appellant State Farm Mutual Automobile Insurance Company’s Motions for Appellate Attorney’s filed September 16, 2003 and October 30, 2003, are denied.
It is further
ORDERED AND ADJUDGED that Appellant/Cross Appellee Osama Youssef’s Motions for Appellate Attorney’s Fees filed September 23, 2003 and December 8, 2003, are granted. Youssef is entitled to reasonable attorney’s fees expended on this appeal contingent upon him ultimately prevailing in the action below. The trial court shall determine the amount of these fees.
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1Because State Farm is no longer the prevailing party in this matter, there is no basis on which it is entitled to attorney’s fees. Therefore, this Court does not reach the propriety of the trial court’s denial of attorney’s fees to State Farm on the basis it made a settlement offer in bad faith.
2This Court recognizes that the wording of the Order Enforcing Settlement may have been complicated by the fact that Youssef II was filed before Youssef I was settled. However, if the Order Enforcing Settlement was intended to cut off Youssef’s right to proceed, the Order should have stated that the settlement of Youssef I covered any future medical treatment of the injuries at issue.
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