14 Fla. L. Weekly Supp. 1135a
Attorney’s fees — Insurance — Personal injury protection — Proposal for settlement — Due to use of phrase “but not limited to” in general release, proposal for settlement is not sufficiently particular to meet requirements of rule 1.442 — Motion to tax fees denied
SPINE & REHAB MEDICINE, P.A., a/a/o FRANK MOLINO, Plaintiff, v. DAIRYLAND INSURANCE COMPANY, Defendant. County Court, 5th Judicial Circuit in and for Hernando County. Case No. H-27-SP-2006-308. September 17, 2007. Kurt E. Hitzemann, Judge. Counsel: Timothy A. Patrick, Nicholas, Lipscomb & Patrick, P.A., Tampa, for Plaintiff. David A. Boulos, Allen, Kopet & Associates, PLLC, Tampa, for Defendant.
REVERSED at 15 Fla. L. Weekly Supp. 861b
ORDER ON DEFENDANT’S MOTION TO TAX ATTORNEY’S FEES AND COSTS
THIS MATTER having come before the Court on the Defendant’s Motion To Determine Entitlement To Attorney’s Fees and the Court having reviewed the file, the pleadings, heard the arguments of counsel and the Court being otherwise fully advised in the premises, finds as follows:
1. On March 16, 2006, the Plaintiff filed this action against Defendant seeking unpaid no-fault insurance benefits.
2. On August 29, 2006, the Defendant, in accordance with Florida Statute Section 768.79 and Rule 1.442 of the Florida Rules of Civil Procedure, served its Proposal For Settlement with attached General Release For No Fault Benefits on the Plaintiff. The Plaintiff did not settle this matter on the terms and conditions contained in the Defendant’s Proposal For Settlement.
3. On February 27, 2007, this Court granted Summary Judgment in favor of the Defendant and subsequently entered an appropriate Final Judgment.
4. The General Release For No Fault Benefits attached to the Defendant’s Proposal For Settlement is one of the relevant conditions or nonmonetary terms that must be described with particularity under Rule 1.442. State Farm Mutual Automobile Insurance Company v. Nichols, 932 So.2d 1067, 1078 (Fla. 2006).
5. The pertinent language of the release states, “This release includes but is not limited to, lost income, benefits for medical, surgical, x-ray, dental, ambulance, hospital, professional nursing and rehabilitative services, eyeglasses, hearing aids and prosthetic devices, and remedial religious treatment or services by a recognized method of healing and/or funeral expenses incurred from the date of the accident through the date of this release.” (emphasis added)
6. In order to meet the requisite level of particularity, the terms (in this case the language of the release) “. . .must be devoid of ambiguity, patent or latent, and not require any clarification or later judicial interpretation.” Dryden v. Pedemonti, 910 So.2d 854, 856 (Fla. 5th DCA 2005).
7. The use of the phrase, “but not limited to” in the language of the release, without question, creates the potential for resort to judicial interpretation. If one removes the list of particular expenses, the language reads as follows: This release includes but is not limited to. . .expenses incurred from the date of the accident through the date of this release. Such language could be read not to be limiting in any way.
8. The language of the release is not sufficiently particular to meet the requirements of Rule 1.442 as to attorney fees.
9. The issue of taxable costs was not before the court at this hearing and the court makes no ruling in that regard.
Therefore, it is
ORDERED AND ADJUDGED that the Defendant’s Motion to Tax Attorney’s Fees is DENIED.
