13 Fla. L. Weekly Supp. 1154b
Attorney’s fees — Insurance — Personal injury protection — Offer of judgment — Where insurer made offer of judgment of $750, jury returned verdict of $0 in favor of insurer, but court directed verdict against insurer due to underpayment of one medical bill and entered judgment of $1.26 for balance of bill and interest, provider is entitled to award of attorney’s fees incurred prior to date of offer of judgment, and insurer is entitled to award of attorney’s fees incurred subsequent to offer
UNIVERSAL MEDICAL CENTER OF SOUTH FLORIDA, INC., Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 05-345 AP. L.C. Case No. 00-8382 CC 26(01). September 1, 2006. An appeal from a decision of the MIAMI-DADE COUNTY COURT, JUDGE JUDITH RUBENSTEIN. Counsel Juan C. Montes, for Appellant. Douglas H. Stein, for Appellee.
(Before JON I. GORDON and JOSEPH P. FARINA, JJ.)
(Per Curiam.) On November 17, 2000, Appellant, Universal Medical Center of South Florida, Inc. (“Universal”), filed its complaint, alleging that it was an assignee of Paula Ellis, an insured under a personal injury protection (“PIP”) insurance policy issued by Appellee, State Farm Mutual Automobile Insurance Company (“State Farm”). Ellis had been injured in an automobile accident on August 28, 2000. On January 23, 2002, State Farm served its proposal/offer of judgment to Universal, pursuant to §768.79, Fla. Stat., in the amount of $750.00. This was to cover medical bills, plus reasonable attorney’s fees and costs. Universal rejected the offer.
On January 28, 2003, the case went to trial and the jury returned a $0 verdict in favor of State Farm and against Universal. However, as to one of Universal’s medical bills in the amount of $275.00, State Farm had mistakenly paid $274.00, and the trial court directed a verdict against State Farm as to that charge. On September 30, 2003, the trial court entered a judgment for Universal in the amount of $1.02, plus interest in the amount of $.24, for a total judgment of $1.26. The final judgment reserved jurisdiction to determine all appropriate post-judgment motions including the parties’ motions for attorney’s fees and costs.
On October 30, 2003, Universal filed its motion for attorney’s fees and costs, which State Farm opposed. On July 19, 2005, the trial court denied Universal’s motion, and then denied the motion for rehearing on August 18, 2005. Universal initiated this appeal.
The issue before this Court is whether the trial court erred in denying Universal’s motion for rehearing. We conclude that there was error, and that the case must be reversed and remanded, due to recent changes in the law.
In the parties’ initial and response briefs, they take predictable positions on whether the trial court’s ruling was correct or not. Universal contends that any judgment in their favor entitles them to an award of attorney’s fees and costs. State Farm countered with the legal argument that a prevailing party means prevailing on the significant issues in the case. As Universal won a verdict for zero dollars, State Farm considered itself to be the prevailing party. See Moritz v. Hoyt Enterprises, Inc., 604 So. 2d 807 (Fla. 1992) (“Prevailing party” for purposed of attorney’s fee award, is party prevailing on the significant issues in litigation.); Zhang v. D.B.R. Asset Management, Inc., 878 So. 2d 386 (Fla. 3d DCA 2004) (The “prevailing party” for purposes of awarding attorney’s fees is the party determined by the trial court to have prevailed on the significant issues in the litigation).
However, the parties are now in agreement that the recent Florida Supreme Court decision in State Farm Mutual Automobile Ins. Co. v. Nichols, 932 So. 2d 1067 (Fla. 2006) is controlling in this case. In Nichols, the plaintiff sued State Farm for unpaid PIP benefits. State Farm offered the plaintiff a $250 proposal for settlement pursuant to §768.79. Ultimately, the jury returned a verdict finding State Farm not liable for any PIP benefits. State Farm sought an award of its attorney’s fees pursuant to its proposal for settlement, but the trial court denied those fees on the basis that §768.79 did not apply to PIP cases. The District Court of Appeal reversed and certified the question of one of great public importance. Ultimately, the Supreme Court accepted jurisdiction and agreed with the Fifth District’s decision, stating:
The most complex situation is where the insured recovers some damages, but the judgment is only 75 percent or less of the defendant’s offer. . .In that situation, both parties have a statutory entitlement to attorney’s fees. Even then, however, the two statutes will not conflict: under section 627.428, Fla. Stat., the insured will be awarded attorney’s fees incurred before the offer, and under the offer of judgment statute the insurer will be awarded fees incurred after the offer.
Id. at 1075.
In the instant case, State Farm offered Universal $750.00 and Universal received a $1.02 verdict, obviously less than 75% of State Farm’s offer. Under the Nichols analysis, this case should be remanded to reflect that Universal is entitled to an award of reasonable attorney’s fees expended prior to January 23, 2002, the date that State Farm presented its offer to settle, and State Farm would be entitled to an award of reasonable attorney’s fees expended subsequent to that date.
We conclude that the trial court’s decision must be reversed and the matter remanded to the trial court to make a determination on attorney’s fees consistent with the Nichols decision. The trial court should also rule on the issue of appellate attorney’s fees, which both parties have moved for, and which both appear to be entitled to as well.
REVERSED and REMANDED.
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