13 Fla. L. Weekly Supp. 638a
Attorney’s fees — Insurance — Personal injury protection — Proposal for settlement — Nominal offer — Proposal for settlement offering $100 was not made in bad faith where insurer had reasonable foundation to conclude that its exposure was nominal based on reduced payment of claim and clearly deficient demand letter — Disposition on merits — No merit to argument that proposal for settlement has not been triggered because cause was not disposed of on merits where final judgment was entered against medical provider based on entry of summary judgment — Lump sum offer — Offer that does not include breakdown between damages and attorney’s fees is not deficient where rule only requires that offer state whether it includes attorney’s fees — Motion to tax fees and costs granted
HEALTHY LIFE THERAPY & REHAB, INC. (a/a/o Michael Napelitano), Plaintiff, vs. PROGRESSIVE AUTO PRO INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 04-18468 COCE 53. March 21, 2006. Robert W. Lee, Judge. Counsel: Gary Marks, Fort Lauderdale, for Plaintiff. Matt Hellman, Matt Hellman, P.A., Plantation, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION TO TAX FEES AND COSTS
THIS CAUSE came before the Court on March 16, 2006 for hearing of the Defendant’s Motion to Tax 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 rules as follows:
Background. On or about February 22, 2005, the Defendant served the Plaintiff a Proposal for Settlement pursuant to Florida Rule of Civil Procedure 1.442 and Fla. Stat. §768.79, offering $100.00 for the settlement of all claims and potential claims in this case, inclusive of attorney’s fees. The Plaintiff did not accept the Proposal for Settlement within 30 days. Almost a year later, on February 14, 2006, this Court entered Final Judgment in favor of the Defendant. On February 23, 2006, the Defendant filed its Motion to Tax Fees and Costs.
At the hearing, the Plaintiff raised three arguments it claims demonstrates the Defendant is not entitled to fees. First, the Plaintiff claims that the amount offered, $100.00, is nominal and nothing more than a mere effort to try to get an award of fees. Second, the Plaintiff argues that this case was not decided on the merits, but rather a “procedural hurdle” which does not operate under the proposal for settlement rule. Finally, the Plaintiff claims that the proposal is deficient because it does not break down the total amount into separate amounts for damages and fees.
Conclusions of Law. The Court will address each claim made by Plaintiff in the order mentioned above.
Nominal Offer. The focus to determine whether the amount offered meets the requirements of the rule is whether the offer was made in good faith. Ryan v. Lobo de Gonzalez, 841 So.2d 510, 521 (Fla. 4th DCA 2003). To determine whether an offer is made in good faith, a court should consider all surrounding circumstances to determine whether the offeror has “some reasonable foundation on which to base the offer.” Id. at 521-22. If a party’s exposure to liability is nominal, then a nominal offer may well be in good faith.
In the instant case, the Court finds that the Defendant had a reasonable foundation to conclude that its exposure was nominal. The record reflects that the Defendant had paid a portion of the claim, which it believed to be reasonable. Moreover, it was able to determine that the Plaintiff had sent a demand letter which was clearly deficient. To make an offer to give Plaintiff an opportunity to take a dismissal under the circumstances of this case, the Court finds to not be in bad faith. See also Camejo v. Smith, 774 So.2d 28, 29 (Fla. 2d DCA 2000).
Lack of “On the Merits” Disposition. The Plaintiff next argues that the Defendant’s proposal for settlement has not been triggered because the case was not disposed of on the merits. To support this argument, the Plaintiff cites MX Investments, Inc. v. Crawford, 700 So.2d 640 (Fla. 1997) which addressed the entitlement to fees under a proposal for settlement when the plaintiff took a voluntary dismissal. However, the Florida Supreme Court, in explaining why a voluntary dismissal without prejudice was insufficient to trigger fees, noted that the statute required an actual judgment be entered before a party could be entitled to fees. Id. at 642. In the instant case, a final judgment has in fact been entered against the Plaintiff. Therefore, the Defendant has overcome this hurdle. See also Ryan, 841 So.2d at 516, 523 (dealing with the entry of a summary judgment, as in the instant case). Although not necessary to the Court’s decision, the Court notes Plaintiff’s argument that this Court has previously allowed an abatement of a case to provide time to correct a deficient demand letter. See Miller Chiropractic Center v. Ocean Harbor Casualty Ins. Co., 11 Fla. L. Weekly Supp. 1027 (Broward Cty. Ct. 2004). As noted in Miller, however, a two-year delay in correcting a deficiency would not warrant an abatement of an action. As a result, the instant case is more like the two-year delay than the facts in Miller.
Lack of Breakdown. Finally, the Plaintiff objects to the proposal for settlement on the grounds that the lump sum offered did not include a breakdown between damages and fees. The Court does not find this to be an impediment to an award of attorney’s fees. The applicable rule does not require that the offer contain a breakdown. Rather, the rule simply requires the offer to state whether it includes attorneys’ fees. Rule 1.442(c)(2)(F). The Court therefore finds there is no deficiency on this point. See also Bennett v. American Learning System of Boca Delray, Inc., 857 So.2d 986, 987-88 (Fla. 4th DCA 2003). Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion to Tax Fees and Costs is GRANTED. The Defendant may request that this motion be set for evidentiary hearing upon delivering to opposing counsel and the Court, by way of Notice of Filing, a detailed breakdown of fees sought in the form of date, provider, description of work, time spent, and hourly rate sought. A hearing will not be set until this Notice of Filing is provided.
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