14 Fla. L. Weekly Supp. 877a

Attorney’s fees — Insurance — Personal injury protection — Prevailing insurer not entitled to fees under section 57.105, but is entitled to fees based on proposal for settlement filed in small claims PIP case

FLORIDA EMERGENCY PHYSICIANS, KANG & ASSOCIATES, M.D., P. A., as assignee of JOEL MENDOZA, Plaintiff, v. PROGRESSIVE CASUALTY INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 05-SC-10320. June 25, 2007. C. Jeffery Arnold, Judge. Counsel: George Milev. Adams & Diaco, P.A., Tampa. Michael Mills.

ORDER ON DEFENDANT’S MOTION TO ENFORCE PROPOSAL FOR SETTLEMENT AND/OR TAX FEESAND COSTS PURSUANT TO §57.105

THIS MATTER having come before this Court on Defendant’s Motion to Enforce Proposal for Settlement and/or Tax Fee and Costs pursuant to §57.105, and this Court having heard arguments of counsels, and otherwise being advised in the premises, hereby:

FINDS, ORDERS AND ADJUDGES as follows:

1. Plaintiff filed a PIP lawsuit against Defendant for breach of contract and for declaratory judgment on October 25, 2005.

2. Defendant filed a §57.105 Motion against Plaintiff on December 30, 2005.

3. Defendant served a Proposal for Settlement upon Plaintiff on March 6, 2006 in the amount of $100.

4. An Order granting Defendant’s Motion for Final Summary Judgment was entered on August 24, 2006.

5. Plaintiff’s Motion for Reconsideration was denied on October 4, 2006.

6. Defendant’s Motion to Tax Fees and Costs pursuant to §57.105 is hereby DENIED.

7. Based on authority of Tran v. State Farm Fire and Casualty Co., 860 So. 2d 1000 (Fla. 1st DCA 2003), the Offer of Judgment Statute applies to Small Claims cases.

8. Defendant’s Motion to Enforce Proposal for Settlement is hereby GRANTED.

9. In accordance with §768.79, Fla. Stat., Defendant shall be awarded and is entitled to reasonable attorney’s fees and costs.

10. The Court reserves jurisdiction to determine amount of Defendant’s reasonable attorney’s fees and costs.