17 Fla. L. Weekly Supp. 164b
Online Reference: FLWSUPP 1703BURRInsurance — No error in holding that insurer is not liable for interest on overdue payments where benefits had been exhausted during pendency of suit — Attorney’s fees — Offer of judgment — Argument that $1 offer of judgment was not made in good faith, which was not raised before trial court, was not preserved for appeal — Trial court’s conclusion that offer was made in good faith is supported by record — Challenge to amount of attorney’s fees awarded based on claim that trial court did not hear expert testimony fails where expert was present, and record does not reflect that court did not hear from expert — Minor litigant — No merit to argument that judgment is invalid due to nonage of insured where case was litigated for four years before fact of nonage was disclosed, revelation did not occur until after insured had become an adult, and insured was adult at time judgment was entered — Further, appointment of guardian is unlikely to have had any effect on outcome of case, and reasonable pre-suit investigation by insured’s attorney would have revealed her incapacity
REBECCA BURRESS, Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 08-26706, Division X. L.T. Case No. 04-2549. November 3, 2009. On review of a final and nonfinal order of the County Court for Hillsborough County. Counsel: William Finn, Morgan & Morgan, Orlando, for Appellant. Karen A. Barnett, Barnett & Associates, Tampa, for Appellee.
(Bernard C. Silver, J.) Rebekah Burress,1 a minor at the time the suit was brought, but an adult when the court entered judgment, appeals three orders of the county court: the order granting motion for summary judgment in favor of State Farm and denying her claim for damages, the order granting State Farm’s entitlement to attorney’s fees based on State Farm’s offer of judgment, and the judgment awarding fees to State Farm. The grounds on which Burress seeks relief are her contentions that the trial court abused its discretion when it failed to consider interest owed on overdue benefits, that it erred in finding both that State Farm was entitled to fees because State Farm’s offer of judgment was invalid, and in awarding fees in the absence of expert testimony. Finally, Burress claims that the trial court should have appointed a guardian ad litem to protect the interests of the child-turned-adult in the proceedings. The trial judge entered an order granting motion for summary judgment (by itself a nonfinal, nonappealable order) and denied rehearing, and a second judge entered the award of attorney’s fees based on the earlier judge’s determination as to liability and the offer of judgment. In the absence of bad faith, we affirm the determination as to liability for statutory interest on overdue payments because benefits had been exhausted paying legitimate claims, notwithstanding that this occurred after Burress filed her lawsuit. With regard to attorney’s fees, we also affirm. Burress has offered no legal basis to disturb the trial court’s express finding that the offer was made in good faith. With regard to the failure to elicit expert testimony as to the amount of fees, not only was the issue not preserved for appellate review, but the record reflects that an expert did appear for a hearing. Finally, that Burress was a minor at the time suit was filed was not raised until long after she had reached the age of majority; none of the challenged orders were entered while Burress was a minor. In short, we affirm as to all issues.
The facts, briefly, are as follows. Burress was injured in an automobile accident while still a minor. After State Farm discontinued paying benefits based upon a peer review report stating that further chiropractic treatment was unnecessary, Burress sued State Farm. She was still a minor at the time of the suit, yet she filed in her individual capacity. That she was a minor was never raised during the time she was, in fact, a minor. During the pendency of litigation, benefits were exhausted paying other claims related to the accident. As a result, State Farm amended its answer to include the exhaustion defense and thereafter moved for summary judgment. After State Farm filed the motion, but at least six months before the hearing, Burress turned 18 years of age (she is now nearly 22). As Burress neared her 20th birthday, her attorney filed a request for the court to appoint a guardian ad litem. The court never acted upon this request. Burress then took a voluntary dismissal which she withdrew within a month. Neither party challenges the validity of that action. Ultimately, the trial court found that State Farm, as the prevailing party, was entitled to and entered a judgment for attorney’s fees.
Burress challenges the judgment for attorney’s fees and the order granting motion for summary judgment [13 Fla. L. Weekly Supp. 903b]. The latter is not a final order as it lacks the finality of an order entering judgment in favor of a party and against the party opponent. Better Gov’t Ass’n of Sarasota County v. State, 802 So.2d 414, 415 (Fla. 2d DCA 2001), citing Moore International Trucks, Inc. v. Foothill Capital Corp., 560 So.2d 1301 (Fla. 2d DCA 1990)(order granting motion for summary judgment as opposed to entering final judgment, is not a final appealable order). Now that appeal has been taken from the final judgment for attorney’s fees, we may review, de novo, the antecedent granting of State Farm’s motion for summary judgment. Tiger Point Golf and Country Club v. Hipple, 977 So.2d 608, 610 (Fla. 1st DCA 2007)(order denying summary judgment, though nonfinal, was reviewable after final judgment); Volusia County v. Aberdeen at Ormond Beach L.P., 760 So. 2d 126, 130 (Fla. 2000) (review of order on summary judgment is de novo).2
We turn our attention to Burress’s assertion that the trial court should not have granted State Farm’s motion for summary judgment. [13 Fla. L. Weekly Supp. 903b] We disagree.3 “[A]ny payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment, notwithstanding that written notice has been furnished to the insurer,” United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82, 86 (Fla.2001), quoting section 627.736(4)(b), Florida Statutes; State Farm Mut. Auto. Ins. Co. v. Jones, 789 So.2d 504, 506 (Fla. 1st DCA 2001) (if benefits were not actually due, they could not be overdue); Am. Ins. Co. v. Stand-Up MRI of Orlando [Stand-Up MRI], 990 So. 2d 3, 4 (Fla. 5th DCA 2008). An insurer cannot be liable for benefits over the policy limits in the absence of an allegation and showing of bad faith. Stand-Up MRI at 5-6 (plaintiff cannot gain more than the contractual benefit amount in the absence of a showing of bad faith on the part of insurer; there is no legal requirement that an insurer set aside a reserve fund for claims which are reduced or denied; it is first come-first served for medical providers as long as their PIP claim is deemed to be compensable). See also Robert D. Simon, M.D., P.A. v. Progressive Exp. Ins. Co., 904 So. 2d 449 (Fla. 4th DCA 2005)(insurer not required to set aside a reserve fund for claims that were reduced or denied). The trial court was correct to deny Burress’s claim for interest on the overdue payments after benefits were exhausted. When benefits are exhausted, the insurer has no further obligation under its contract with the insured. Id. If an insurer is not liable for further benefits, it cannot be liable for interest. AIU Ins. Co. v. Daidone, 760 So. 2d 1110, 1112 (Fla. 4th DCA 2000).
On the issue of attorney’s fees, Burress challenges the trial court’s decision finding that State Farm was entitled to fees on the ground that the basis for fees was an invalid offer of judgment. Burress contends that the offer — in the amount of $1.00 — was not made in good faith. Both parties incorrectly assert that the standard of review is abuse of discretion. The correct standard of review on the legal question of entitlement to fees is de novo. Connell v. Floyd, 866 So.2d 90 (Fla. lst DCA 2004)(construing section 768.79 and Fl.R.C.P. 1.442, the court reviewed de novo the entitlement to fees based on appellant’s extension of a $1.00 proposal for settlement to opposing party). See also In re Guardianship of Sapp, 868 So.2d 687, 691 (Fla. 2d DCA 2004) ([i]t is well-settled that when entitlement to attorney’s fees is based on the interpretation of contractual provisions as a pure matter of law, an appellate court will undertake a de novo review to determine the appropriate construction of the contract). Although Sapp addressed the provisions in a contract, the assessment of the validity of an offer of judgment to determine entitlement to fees is no less a question of law. See also Gibbs Const. Co. v. S. L. Page Corp., 755 So.2d 787 (Fla.2d DCA 2000)([t]o the extent that a trial court has discretion, appellate courts apply an abuse of discretion standard in reviewing a trial court’s award of attorney fees, most often in regard to the amount of an award rather than the actual entitlement to an award).
The relaxed standard of review does not aid Burress in her challenge of the fees the trial court awarded to State Farm. Burress challenges State Farm’s entitlement to fees on the ground that the offer of judgment on which entitlement was based was not valid because State Farm did not make the offer in good faith. See §768.79(7)(a), Florida Statutes. The record contains no evidence that Burress preserved this issue for appeal. The only basis on which Burress challenged the motion for attorney’s fees at the trial level was that the court had not yet addressed the rehearing motion Burress had filed. Even if Burress had preserved the issue for appellate review, which she did not, the record contains ample support for the trial court’s conclusion that State Farm made the offer in good faith. We therefore affirm the trial court’s conclusion that State Farm was entitled to fees based upon its offer of judgment to Burress.
Burress next challenges the amount of fees awarded based on the fact that the trial court did not hear testimony from an expert. Burress correctly states the law that an expert’s testimony is generally required to establish fees. Trumbull Ins. Co. v. Wolentarski, 2 So. 3d 1050 (Fla. 3d DCA 2009)([a]n attorney’s fee award must be supported by expert testimony regarding the reasonableness of the fee.) Here, the judgment indicates that an expert witness was present at the hearing and was even awarded a fee for his work in this case. If the court did not hear from the expert, the record does not reflect it. In the absence of an adequate record demonstrating reversible error, we are bound to affirm. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).
Burress now raises the issue as to the validity of the judgment based on the disability of nonage of Burress. This case had been litigated for over four years before that fact was disclosed and the revelation did not occur until after Burress had turned 18. Burress’s counsel claims that he was unaware of her incapacity, and goes to great lengths to place equal burden on State Farm and its counsel. While this conduct is problematic, and the subject of a pending motion for sanctions, Burress had become an adult by the time the final judgment was entered against her. Even if this did not cure the defect, the judgment may be unassailable for two other reasons: one is that the appointment of a guardian is unlikely to have had any effect on the outcome, and the second is that a reasonable pre-suit investigation by Burress’s own attorney would have revealed her incapacity. Indeed, there is evidence that the same firm filed a UM suit on behalf of Burress in Pinellas County just six weeks before the instant suit was filed. Her father was named as her ‘next friend.’ The requirement to set aside the judgment is not absolute. The rule respecting appointment of a guardian ad litem or next friend to represent minor litigant is procedural only. The rule does not constitute a jurisdictional bar to an action brought by or against a minor in his individual capacity and does not divest court of jurisdiction over person of infant merely because he brings suit as plaintiff or is sued as defendant in an individual capacity and not by a guardian or next friend. Smith v. Langford, 255 So. 2d 294 (Fla. 1st DCA 1971), construing Fl. R. C. P. 1.210(b). (STODDARD and LEVENS, JJ., Concur.)
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1This is the correct spelling; the caption is and has been spelled incorrectly.
2Burress does not challenge, and we do not pass on the propriety of the entry of, a judgment for attorney’s fees in the absence of a technical final judgment for State Farm. There is no evidence in the record that the issue was raised below. We consider the matter to have been tried by consent of the parties and any error to have been waived.
3We agree that State Farm was entitled to summary judgment on the merits. Procedurally speaking, the correct practice would have been for State Farm to seek the entry of a final summary judgment rather than an order granting motion for summary judgment. As noted in the opinion, the former is a final, appealable order; the latter is not.
