15 Fla. L. Weekly Supp. 582b
Attorney’s fees — Insurance — Personal injury protection — Offer of settlement — Medical provider that accepted presuit settlement offer after suit was filed is not prevailing party entitled to attorney’s fees and costs — No merit to claim that provider is prevailing party because prior settlement offer was less than amount ultimately recovered by provider as settlement amount plus fees, costs and prejudgment interest where offer was made before suit was filed when there was no entitlement to fees, costs or interest
U.S. SECURITY INSURANCE COMPANY, Appellant, v. NORTH MIAMI THERAPY CENTER INC., a/a/o Marie Yvonnette Dessin, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 06-5307 CACE 18. March 10, 2008. Appeal from the County Court in and for Broward County, L.T. Case No. 04-19751 (52), The Honorable Jay Spechler, Judge. Counsel: David B. Pakula, David B. Pakula, P.A., for appellant. Stuart B. Yanofsky, Stuart B. Yanofsky, P.A., for appellee.
(Before The Honorable John T. Luzzo, Circuit Judge.)
Before suit was filed, U.S. Security Insurance Company offered to pay $3,000 to settle a disputed PIP claim brought by North Miami Therapy Center, Inc., a/a/o Marie Yvonnette Dessin. North Miami Therapy Center rejected the offer and then filed suit. Five months later, North Miami Therapy Center accepted U.S. Security’s proposal for settlement in the amount of $3,000, “excluding any costs and attorney’s fees which are part of the legal claim.” North Miami Therapy Center then moved for fees and costs and ultimately recovered a judgment for fees and costs totaling $12,846.75. That judgment is reversed.
In Danis Industries Corp. v. Ground Improvement Techniques, Inc., 645 So. 2d 420 (Fla. 1994), the Supreme Court of Florida held a prevailing insured under §627.428, Florida Statutes, “is one who has obtained a judgment greater than any offer of settlement previously tendered by the insurer.” 645 So. 2d at 421. The court explained:
[A]n insured. . . cannot continue to incur attorney’s fees and costs or accrue interest and have those awarded against the insurer. . . after the insurer. . . has offered the full amount for which it has liability on the date it offers to make the payment.
645 So. 2d at 422. The Danis rule applies where the previous settlement offer was made presuit. See Greenough v. Aetna Cas. & Surety Co., 449 So. 2d 1001 (Fla. 4th DCA 1984); LaBrouse v. U.S. Security Ins. Co., 13 Fla. L. Weekly Supp. 892a (Fla. 11th Jud. Cir. 2006); Union Amer. Ins. Co. v. Lopez, 6 Fla. L. Weekly Supp. 72a (Fla. 11th Jud. Cir. 1998). See also Florida Life Ins. Co. v. Fickes, 613 So. 2d 501 (Fla. 5th DCA 1993) (insured not entitled to an award of fees when the insurer paid the full amount to which the insured was entitled before suit was filed).
The amount North Miami Therapy Center recovered when it accepted U.S. Security’s proposal for settlement — $3,000 — was the same amount U.S. Security had previously offered to settle the claim before suit was filed. Therefore, it would appear that under the Danis rule, North Miami Therapy Center did not prevail for purposes of § 627.428 and is not entitled to an award of fees and costs.
However, North Miami Therapy Center contends it is entitled to attorney’s fees because U.S. Security’s $3,000 presuit settlement offer was less than the amount it ultimately recovered — $3,000 plus fees incurred through the date of U.S. Security’s presuit settlement offer. In making that contention, North Miami Therapy Center relies on language in Scottsdale Ins. Co. v. DeSalvo, 748 So. 2d 941 (Fla. 1999) to the effect that the Danis rule only applies when an insurer previously offered to pay the full value of the claim, including fees, costs and prejudgment interest incurred through the date of the offer. 748 So. 2d at 944.
The problem with North Miami Therapy Center’s contention is that the language in the DeSalvo decision on which it relies has no application when, as here, the prior settlement offer was made before suit was filed, i.e., before entitlement to fees, costs and prejudgment interest potentially commences. If North Miami Therapy Center had accepted the $3,000 presuit offer, it would not have been entitled to recover fees, costs or interest. Therefore, U.S. Security’s presuit offer, if accepted, would have satisfied the full value of the claim. The subsequent litigation initiated and pursued by North Miami Therapy Center was a fruitless endeavor for which it may not recover fees, in accordance with the rule announced in Danis.
Accordingly, the judgment awarding fees and costs to North Miami Therapy Center is reversed.
