13 Fla. L. Weekly Supp. 1006c
Attorney’s fees — Insurance — Personal injury protection — Declaratory judgment — Despite fact that insured filed petition for declaratory relief, insurer is entitled to award of attorney’s fees and costs where real issue in case is damages for PIP benefits and insured failed to accept offer of judgment made pursuant to section 768.79
SHANNON CIOTTI, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 05-20128, Division H. July 26, 2006. Eric R. Myers, Judge. Counsel: Gale L. Young, Gale L. Young, P.A., Tampa. David Lipscomb. Timothy A. Patrick.
ORDER GRANTING DEFENDANT’S MOTION TO DETERMINE ENTITLEMENT TO AWARD OF ATTORNEY’S FEES AND COSTS PURSUANT TO § 768.79, FLA. STAT.
THIS CAUSE, having come on before this Court on July 17, 2006, upon the Defendant’s Motion to Determine Entitlement to Award of Attorney’s Fees and Costs Pursuant to §768.79, Fla. Stat., and the Court having heard argument of counsel for the respective parties, and being otherwise duly advised in the premises, it is hereby
ORDERED AND ADJUDGED that Defendant’s Motion to Determine Entitlement to Award of Attorney’s Fees and Costs is granted. The Court finds that F.S. §768.79 does apply despite the fact that Plaintiff filed a petition for declaratory relief. In Dipompeo Construction Corp. v. Kimmel & Assoc., 916 So. 2d 17, 18 (Fla. 4th DCA, 2005) the Court “looked behind the procedural vehicle used to bring a lawsuit and focused on whether the ‘real issue’ in the case is one for damages.” The Court has reviewed the record evidence in this matter and finds, as in Kimmel, that the “real issue” in the case at bar is one of damages for personal injury protection benefits. Plaintiff failed to accept an offer of judgment made pursuant to F.S. §768.79. The Court reserves jurisdiction to determine the amount of fees and costs to be awarded to Defendant if the parties cannot agree on an amount.
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