13 Fla. L. Weekly Supp. 181b
Attorney’s fees — Insurance — Personal injury protection — Proposal for settlement — Good faith — Although insurer’s $100 settlement offer was substantially less than amount claimed by medical provider and could not have included attorney’s fees and costs, where offer was served before provider’s counsel had expended substantial amount of time on case, and insurer possessed documents that demonstrated that insured’s benefits had been exhausted, provider failed to establish that offer was not made in good faith — Motion to enforce proposal for settlement and tax fees and costs granted
BACK IN ACTION HEALTH LLC, Plaintiff(s), vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant(s). County Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division RE. Case No. 502003CC012841. November 21, 2005. Susan Lubitz, Judge. Counsel: Jeff D. Vastola, West Palm Beach. Lynne M. French, Adams & Diaco, P.A., Miami.
ORDER ON DEFENDANT’S MOTION TO ENFORCE DEFENDANT’S PROPOSAL/OFFER FOR SETTLEMENT
THIS CASE came before the court for hearing on Defendant’s Motion To Enforce Defendant’s Proposal/Offer For Settlement and/or Motion To Tax Attorney’s Fees And Costs with both counsel present. The court, having considered the court record and argument, finds as follows:
FACTS
On June 7, 2003 Plaintiff, Back In Action Health, LLC (“Back In Action”) served Defendant, Progressive Express Insurance Company (“Progressive”), with a PIP suit for $1492.80. On January 22, 2004, Progressive served a Proposal/Offer For Settlement upon Back In Action for $100.00, including attorney’s fees and costs, which Back In Action did not accept.
On September 17, 2004, the court granted Defendant’s Motion For Summary Judgment on the grounds that Back In Action’s assignor had exhausted his personal injury protection benefits. The court entered Final Judgment for Progressive on October 18, 2004.
DISCUSSION
Progressive seeks attorney’s fees and costs pursuant to Section 768.79, Fla. Stat. (2001). Back In Action requests the court to deny the motion for fees and costs on the grounds that the Proposal/Offer For Settlement was not made in good faith. Section 768.79(7)(a).
Back In Action had the burden to prove the absence of good faith in challenging Progressive’s entitlement to fees and costs. Good faith merely requires that the offeror has a reasonable foundation on which to make the offer. Donohoe and TBM Staffing, Inc. vs. StarMed Staffing, Inc., 743 So.2d 623 (Fla. 2nd DCA 1999). Defendant’s Privilege Log (# 18) suggests that Progressive possessed documents that the insured’s benefits under the policy had been exhausted.
Nominal offers of judgment do not necessarily presume bad faith. Proof of bad faith requires more than the mere amount of the offer. Fox vs. McCaw Cellular Communications of Florida, 745 So.2d 330 (Fla. 4th DCA 1998). Although Progressive’s offer was substantially less than the amount claimed, and the offer could not have included attorney’s fees and costs, the court record indicates that the offer was served before Plaintiff’s counsel had expended a substantial amount of time on the case.
Plaintiff’s counsel failed to present sufficient evidence of an absence of good faith.
Based on the foregoing, it is
ORDERED AND ADJUDGED that Defendant’s Motion To Enforce Defendant’s Proposal/Offer For Settlement and/or Motion To Tax Attorney’s Fees And Costs is granted. Defendant is entitled to attorney’s fees and costs.
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