14 Fla. L. Weekly Supp. 176a
Attorney’s fees — Insurance — Personal injury protection — Proposal for settlement — Nominal offer — Although insurer may have had reasonable basis to conclude its exposure in case was nominal at time of making nominal settlement offer, such that offer was made in good faith, where basis for summary judgment was apparent to insurer long before parties engaged in eight months of protracted litigation, insurer’s motion to tax attorney’s fees and costs is denied
RHODES & ANDERSON, D.D., P.A. D/B/A VENICE CHIROPRACTIC CENTER (A/A/O IRENE DYNDUL), Plaintiff, vs. STATE FARM AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 12th Judicial Circuit in and for Sarasota County. Case No. 2005 SC 1960 SC. December 14, 2006. David L. Denkin, Judge. Counsel: Virlyn B. Moore, III, Venice, for Plaintiff. David B. Kampf, Tampa.
ORDER
This matter came before this Court pursuant to Defendant’s Motion to Tax Fees and Costs. After hearing argument of counsel, reviewing the memoranda and case law presented by the parties and after reviewing the court file hereby enters its Order denying the Defendant’s request to tax attorney fees and costs against Plaintiff.
Florida law has been consistent in that the court can only award attorney’s fees and costs pursuant to either a contract or statute. Paz v. Hernandez, 654 So. 2d 1243, 1244 (Fla. 3d DCA 1995). The offer of judgment statute creates a right to reasonable attorney’s fees and costs. Section 768.79(1), Florida Statutes, provides, in pertinent part:
“In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award. . . . ” § 768.79(1), Fla. Stat. (2000).
However, an award of attorney’s fees and costs under section 768.79 may be denied by the court if it determines that the offer was not made in good faith. § 768.79(7)(a), Fla. Stat. (2000); Allstate Ins. Co. v. Manasse, 715 So. 2d 1079 (Fla. 4th DCA 1998). See also Camejo v. Smith, 774 So. 2d 28 (Fla. 2d DCA 2000). The determination of whether an offer was served in good faith depends on whether the offeror had a reasonable foundation upon which to make the offer, i.e., whether the offer bears a reasonable relationship to the damages and liability. Gurney v. State Farm Mut. Auto., 889 So. 2d 97 (Fla. 5th DCA 2004); Disney v. Vaughen, 804 So. 2d 581 (Fla. 5th DCA 2002). Moreover, the issue of good faith in making an offer of judgment is determined solely by the subjective motivations and beliefs of the offeror, not the reactions of the offeree. Wagner v. Brandeberry, 761 So. 2d 443 (Fla. 2d DCA 2000).
State Farm asserts that it had a reasonable basis to conclude its exposure in the case was nominal. In support of its contention, State Farm cites to Nants v. Griffin, 783 So. 2d 363 (Fla. 5th DCA 2001), State Farm Mut. Auto. Ins. v. Marko, 695 So. 2d 874 (Fla. 2d DCA 1997), and Peoples Gas Sys. v. Acme Gas Corp., 689 So. 2d 292 (Fla. 3d DCA 1997), for the proposition that a nominal offer can be made in good faith if the evidence shows that the offeror had a reasonable basis upon which to conclude that its exposure was nominal at the time the offer was made. This court does not dispute that analysis. However, this court instead looks to the time in between making the offer and the time within which State Farm filed its Motion for Summary Judgment. This time frame is especially relevant in light of the fact that the basis for the Motion for Summary Judgment appears to have been apparent to the Defendant long before the parties engaged in 8 months of protracted litigation.
IT IS THEREFORE ORDERED and ADJUDGED that State Farm’s Motion to Tax Attorney Fees and Costs is DENIED.
