15 Fla. L. Weekly Supp. 170b
Attorney’s fees — Insurance — Personal injury protection — Proposal for settlement — Timeliness — Mere prematurity of proposal for settlement does not bar insurer from recovery of attorney’s fees — Proposal that does not require signing of release and requests only that matter be dismissed with prejudice is not ambiguous
SPINE & REHAB MEDICINE, P.A., (As assignee of Faith Walker), Plaintiff, v. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 5th Judicial Circuit in and for Hernando County. Case No. H-27-SP-2006-201. November 16, 2007. Kurt E. Hitzemann, Judge. Counsel: Timothy A. Patrick, Lipscomb, Nicholas & Patrick, P.A., Tampa, for Plaintiff. David B. Kampf, Ramey & Kampf, P.A., Tampa, for Defendant.
ORDER GRANTING DEFENDANT’S AMENDED MOTION FOR ENTITLEMENT TO TAX FEES AND COSTS
THIS MATTER having come before the Court on the Defendant’s Amended Motion for Entitlement to Tax Fees and Costs 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. Plaintiff filed this PIP suit against Defendant on February 22, 2006.
2. Defendant made a Proposal for Settlement pursuant to Section 768.79 and Rule 1.442 Fla.R.Civ.P. on May 22, 2006.
3. Plaintiff did not accept the Proposal for Settlement within thirty days or, in fact, at any time.
4. Summary Judgment in favor of the Defendant was granted on December 15, 2006.
5. As a result of the Summary Judgment, the Plaintiff took nothing by this action and the Defendant was the prevailing party.
6. The Proposal For Settlement was served 89 days after the action was commenced. Rule 1.442 Fla.R.Civ.P. requires that such Proposals For Settlement not be filed before 90 days after an action is commenced.
7. The Fifth District Court of Appeal (Hernando County is located in the Fifth Appellate District) has held that the mere prematurity of a proposal for settlement does not disentitle a defendant to recovery of attorney fees. Mills v. Martinez, 909 So.2d 340 (Fla. 5th DCA 2005).
8. Clearly, there is a conflict between the Fifth District Court of Appeal and the Second District Court of Appeal. This conflict was certified in Mills. Until the conflict is resolved, this court will follow the Fifth District Court of Appeal as clearly it must.
9. The Court also finds that the Proposal For Settlement is not ambiguous. It did not require the Plaintiff to sign a release. It only requested that the matter be dismissed with prejudice.
10. The Plaintiff did not contest the Defendant’s right to tax costs.
Therefore, it is
ORDERED AND ADJUDGED that the Defendant’s Amended Motion for Entitlement to Tax Fees and Costs is GRANTED. The Court reserves jurisdiction to determine appropriate amounts of fees and costs.
