16 Fla. L. Weekly Supp. 189a
Online Reference: FLWSUPP 162GUTIE
Insurance — Personal injury protection — Attorney’s fees — Proposal or settlement — Attorney’s fees are awarded under offer of judgment statute where case was dismissed with prejudice for failure to comply with discovery orders — There is no language in case law or section 768.79 suggesting that attorney’s fees may only be awarded if judgment is made on merits of case
BROWARD CARE MEDICAL CENTER, a/a/o ROBERTO GUTIERREZ, Plaintiff, v. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant. County Court,11th Judicial Circuit in and for Miami-Dade County. Case No. 03-16310 SP 05. December 17, 2008. Wendell M. Graham, Judge. Counsel: Stuart Yanofsky, for Plaintiff. Brian S. Tenzer, Goldstein Law Group, Fort Lauderdale, for Defendant. Neil Gonzalez.
ORDER GRANTING DEFENDANT’S MOTION FOR ENTITLEMENT TO ATTORNEY FEES AND COSTS
THIS CAUSE having come to be heard before the Court on Defendant’s Motion for Entitlement to Attorney Fees and Costs, and the Court having considered the record, having heard argument by counsel and being otherwise advised in the Premises it is hereby,
ORDERED AND ADJUDGED: Defendant’s Motion is hereby GRANTED.
1. On November 8, 2006, Defendant served its Proposal for Settlement in accordance with Rule 1.442, Fla. R. Civ. P., and Section 768.79, Florida Statutes. Plaintiff did not challenge the form of the proposal for settlement.
2. On February 1, 2007, this Honorable Court executed an Order Granting Defendant’s Motion to Dismiss for Failure to Comply with Court Orders compelling discovery. The Order entered a Judgment of Dismissal with Prejudice.
3. Plaintiff argued that no attorney fees should be granted because the case was not resolved on the merits.
4. In MX Investments, the Supreme Court of the State of Florida held that entitlement to attorney fees pursuant to Section 768.79, Florida Statutes, required the entry of a judgment with Prejudice. MX Investments, Inc. v. Crawford, 700 So. 2d 640 (Fla. 1997). The same proposition was affirmed in Healthy Life Therapy & Rehab, Inc. v. Progressive Auto Pro Ins. Co., 13 Fla. L. Weekly Supp. 638a (17th Judicial Circuit in and for Broward County, Florida, March 21, 2006).
5. There is no language in either the case law or pertinent statute suggesting that attorney fees are only awarded if judgment is made upon the merits.
6. Florida Statutes §768.79 states, “Upon motion made by the offeror within 30 days after the entry of judgment or after voluntary or involuntary dismissal . . . .” § 768.79(6) Fla. Stat. (2008). Furthermore, merit is only considered with respect to the amount of attorney fees and not entitlement. See § 768.79(7)(b)(1) Fla. Stat. (2008); Fla. R. Civ. P. 1.442.
7. Therefore, as this case was dismissed with Prejudice, Defendant is entitled to attorney fees.
