15 Fla. L. Weekly Supp. 861b
Attorney’s fees — Insurance — Personal injury protection — Proposal for settlement — Ambiguity — Trial court erred in denying motion to tax attorney’s fees and costs on ground that proposal for settlement was rendered ambiguous by phrase “but not limited to” in release where intent of release to encompass only claims that may be made in underlying litigation is clearly defined and unequivocal from reading of entire proposal
DAIRYLAND INSURANCE COMPANY, Appellant, v. SPINE & REHAB MEDICINE, P.A., a/a/o FRANK MOLINO, JR., Appellee. Circuit Court, 5th Judicial Circuit (Appellate), Hernando County. Case No. CA-2007-2073. L.T. Case No. 2006-SP-308. May 14, 2008. Rehearing denied June 4, 2008. Appeal from the County Court, Hernando County, Honorable Kurt E. Hitzemann, County Judge. Counsel: Douglas H. Stein and Stephanie Martinez, Anania, Bandklayder, Blackwell, Baumgarten, Torricella & Stein, Miami, for Appellant. David La Croix, Brooksville; and Timothy A. Patrick, Nicholas, Lipscomb & Patrick, P.A., Tampa, for Appellee.
OPINION
[Editor’s note: Lower court order publised at 14 Fla. L. Weekly Supp. 1135a]
(SEMENTO, L.J.) Appellant, Dairyland Insurance Company (“Dairyland”), the Defendant in the trial court, appeals the Order on Defendant’s Motion to Tax Attorney’s Fees and Costs, which denies Dairyland’s motion for an award of attorney’s fees against Appellee, Spine & Rehab Medicine, P.A., as assignee of Frank Molino, Jr. (“Spine & Rehab”), the Plaintiff below. Dairyland sought fees pursuant to a proposal for settlement which the trial court determined was ambiguous. Our standard for review in determining whether the proposal comports with applicable law is de novo. Saenz v. State Farm Mut. Auto. Ins. Co., 967 So.2d 1114 (Fla. 4th DCA 2007).
Spine & Rehab filed a small claims action against Dairyland for monies due for medical services it provided to Yusdey Estevez, a patient insured under personal injury protection coverage issued by Dairyland. Pursuant to a stipulation between the parties, the trial court invoked the Florida Rules of Civil Procedure. Dairyland served its Proposal for Settlement on Spine & Rehab, which Spine & Rehab did not accept. The trial court granted Dairyland’s Motion for Final Summary Judgment and subsequently entered a Final Judgment in favor of Dairyland. The trial court denied Dairyland’s Motion to Tax Attorney’s Fees and Costs, finding that the Proposal for Settlement is not sufficiently particular to meet the requirements of Rule 1.442, Florida Rules of Civil Procedure, which requires that a proposal for settlement state with particularity any relevant conditions. Dairyland’s Proposal for Settlement contains a General Release for No Fault Benefits. The trial court found that the use of the phrase “but not limited to” in the Release rendered the Proposal ambiguous.
Section 768.79, Florida Statutes, and Rule 1.442, Florida Rules of Civil Procedure, relating to proposals for settlement, are strictly construed because they are in derogation of the common law and are punitive in nature. See, e.g., Sarkis v. Allstate Insurance Co., 863 So. 2d 210 (Fla. 2003); Willis Shaw Express v. Hilyer Sod, 849 So. 2d 276 (Fla. 2003). To be enforceable, a proposal for settlement must be “as specific as possible” and be “devoid of ambiguity, latent or patent.” Dryden v. Pedemonti, 910 So. 2d 854, 856 (Fla. 5th DCA 2005). A proposal for settlement is intended to end judicial labor, not create more, Lucas v. Calhoun, 813 So. 2d 971 (Fla. 2d DCA 2002), and a legally sufficient proposal for settlement “should be capable of execution without the need for further explanation or judicial interpretation.” Dryden v. Pedemonti, supra.
In State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067 (Fla. 2006), the Florida Supreme Court held that releases required by settlement proposals are conditions or non-monetary terms that must be described with particularity. If not, the proposal for settlement is ambiguous and will not be enforced. Id.
Courts have held that general releases that can be interpreted to release unspecified claims in addition to those at issue in the litigation are not sufficiently specific. See, e.g., State Farm Mut. Auto. Ins. Co. v. Nichols (release ambiguous because it required plaintiff to extinguish “all” claims including those not at issue in litigation, i.e. the uninsured motorist claim). Id. at 1080; Palm Beach Holdings, Inc. v. Village of Wellington, 904 So. 2d 652 (Fla. 4th DCA 2005) (release ambiguous because it may have extinguished claims unrelated to pending litigation, including other lawsuit between parties). Id. at 653, 654; Saenz v. Campos, 967 So. 2d 1114 (Fla. 4th DCA 2007) (proposal ambiguous because release unclear whether it intended to release all claims, including bad faith claims not raised in litigation). Id. at 117.
Where the language of a release is clear and unambiguous, a court cannot indulge in construction or interpretation of its plain meaning. Hurt v. Leatherby Ins. Co., 380 So. 2d 432 (Fla. 1980).
[T]he meaning of a contract is not to be gathered from any one phrase or paragraph, but from a general view of the writing as a whole, with all of its parts being compared and construed, each with reference to the other.
Gowni v. Makar, 940 So. 2d 1226, 1229 (Fla. 5th DCA 2006). The intention of the parties to a contract must be determined from “an examination of the entire contract and not from separate phrases or paragraphs.” Iniguez v. American Hotel Register Co., 820 So. 2d 953, 955 (Fla. 3d DCA 2002).
The instant case is nearly on point with State Farm Mutual Automobile Insurance Co. v. McElvin, 14 Fla. L. Weekly Supp. 842 (Fla. 9th Jud. Cir. June 4, 2007). There, the trial court denied the defendant’s motion for attorney’s fees based upon a proposal for settlement with a release containing the phrase “including but not limited to,” finding the proposal to be ambiguous because of that language. The appellate court determined that the proposal was not ambiguous in light of the plain meaning determined from a reading of the entire document. Id. at844.
Dairyland’s Proposal was made “to resolve all claims brought by Plaintiff, SPINE & REHAB MEDICINE, P.A., as assignee of Frank Molino, against Defendant, DAIRYLAND INSURANCE COMPANY, for medical services provided for injuries sustained due to a motor vehicle accident on July 23, 2005, as set forth in the Complaint filed in the above-styled case.” The Release states that the claims released are those “for personal injury protection (No Fault) and/or medical payment benefits for Claim No. 63A705035-017 (Dates of Service: 8/02/05 to 09/21/05) including bodily injury, loss of income, replacement services and/or funeral expenses arising out of an accident which resulted from the ownership, maintenance or use of a motor vehicle and which occurred on or about July 23, 2005. . .” The intent of the Release is clearly defined and unequivocal, and it encompasses only those claims which may be made in the underlying litigation. While the trial court found an ambiguity in the release created by the phrase “but is not limited to,” the Proposal, read as a whole, is not ambiguous.
The Order on Defendant’s Motion to Tax Attorney’s Fees and Costs is reversed, and this matter remanded to the trial court with instructions to award Dairyland attorney’s fees, after a hearing to determine the appropriate amount.
The Order of the trial court is REVERSED and this matter is REMANDED. (MERRITT, D., SR. and LAMBERT, B. concur.)
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ORDER ON MOTION FOR REHEARING
(DANIEL B. MERRITT, SR., J.) THIS CAUSE comes before this Court on the Appellee, Spine & Rehab Medicine, P.A.’s, Motion for Rehearing, and this Court, having reviewed the file and the Motion and being fully advised in the premises hereby finds that the Motion should be denied. Accordingly, it is
ORDERED AND ADJUDGED that the Appellee’s Motion for Rehearing is DENIED.
