19 Fla. L. Weekly Supp. 200a
Online Reference: FLWSUPP 1903TRUDInsurance — Automobile — Attorney’s fees — Proposal for settlement — Post-judgment proposal to settle attorney’ fees claim, served for purpose of locking down a basis to argue entitlement to attorney’s fees for time spent litigating attorney’s fees — Complaint clearly recited that plaintiff sought fees pursuant to section 627.428, and Florida Supreme Court has held that fees incurred in litigating the amount of attorney’s fees is not included within that statute
JEFFREY TRUDELL, an individual, Plaintiff, v. THE TRAVELERS HOME AND MARINE INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 10th Judicial Circuit in and for Polk County. Case No. 2009-CC-001869. October 17, 2011. Honorable Robert G. Fegers, Judge. Counsel: Thomas C. Saunders and Alan L. Perez, Saunders Law Group, Bartow, for Plaintiff. Michael C. Clarke, Kubicki Draper, P.A., Tampa, for Defendant.
ORDER GRANTING DEFENDANT’S MOTIONTO STRIKE AND RESPONSE TO PLAINTIFF’SMOTION FOR ENTRY OF FINAL JUDGMENT FORATTORNEY FEES AND COSTS PURSUANTTO PROPOSAL FOR SETTLEMENT
This Cause came before the Court for hearing on Defendant’s Motion to Strike and Response to Plaintiff’s Motion for Entry of Final Judgment for Attorney Fees and Costs Pursuant to Proposal for Settlement.
Plaintiff was represented at the hearing by attorneys Alan L. Perez and Thomas C. Saunders. Defendant was represented at the hearing by attorneys Cynthia N. Chambers and Michael C. Clarke.
The hearing was conducted August 18, 2011.
SUMMARY BACKGROUND OFUNDERLYING CLAIM
Plaintiff contested Defendant’s determination that the engine problems discovered subsequent to the theft of his vehicle were pre-existing. Plaintiff admitted that prior to the theft, his vehicle had cooling system problems which required Plaintiff to frequently fill the vehicle’s radiator with water and/or coolant so as to prevent overheating. Plaintiff contended, however that as long as the vehicle’s engine cooling system was kept filled with water and/or coolant on a regular basis, the vehicle did not overheat. Plaintiff contended therefore that the thief, apparently unaware of the vehicle’s cooling system problems, caused the engine damage by not filling the cooling system with water and/or coolant during the time the thief was in possession of the vehicle. In essence, Trudell conceded that the potential for coolant-related engine problems pre-existed the theft but that the cause of the engine damage was the theft itself when combined with the thief’s lack of knowledge regarding the fact that water and/or engine coolant was required to consistently run the vehicle without causing engine damage.
On April 18, 2009 Plaintiff, through counsel, filed a one count Complaint for Claim for Breach of Contract against his insurance company, the Defendant, to recover damages suffered at the hands of the thief.
After a resolution of the issues framed in the Complaint, or concurrently therewith, the Defendant conceded Plaintiff’s entitlement to the recovery of attorney fees. The parties disputed the amount of attorney fees to which Plaintiff’s counsel was entitled to recover. After holding a trial on the issue of the amount of attorney fees this Court entered its Final Judgment as to Attorney Fees and Costs on June 17, 2011. On June 22, 2011, Plaintiff filed, with the Court, his “Proposal for Settlement” which was previously served on Defendant on December 29, 2010. Simultaneous with the filing of the “Proposal for Settlement” with the Court Plaintiff filed a “Motion for Entry of Final Judgment for Attorney Fees and Costs Pursuant to Proposal for Settlement”. The Defendant then filed his Motion to Strike and Response to Plaintiff’s Motion for Entry of Final Judgment for Attorney Fees and Costs Pursuant to Proposal for Settlement.Analysis
Plaintiff’s Proposal for Settlement states in substance, in relevant part as follows:
1. The Proposal for Settlement is filed pursuant to Section 768.79, Florida Statutes (2010), and Rule 1.442, Florida Rules of Civil Procedure.
2. The “Proposal for Settlement is attempting to resolve Plaintiff’s Claim to attorney’s fees incurred by Plaintiff in bringing the claims that are pending”. The Plaintiff footnotes a separate proposal for Settlement has been served as relates to taxable costs.
3. The Plaintiff, via his Proposal for Settlement, offered to settle Plaintiff’s claim for attorney fees for $10,000 “for the expense of all attorney’s fees associated with the prosecution of the above-referenced action” in exchange for an executed release.
4. The proposal includes attorney fees “and attorney’s fees are a part of the legal claim raised by the Plaintiff”.
Defendant argues Plaintiff’s ability to recover attorney fees is foreclosed by: the seminal ruling by the Florida Supreme Court in State Farm Fire & Casualty Co. v. Palma, 629 So 2d 830 (Fla. 1993) which prohibits the recovery of attorney fees when litigating the amount of attorney fees; the Appellate Court ruling in Oruga Corp., Inc. v. AT&T Wireless of Florida, Inc., 712 So 2d 1141 (Fla 3rd DCA 1998) [23 Fla. L. Weekly D1401a] which prohibited the recovery of attorney fees when litigating the amount of attorney fees in the context of an offer of judgment; and that the offer of judgment statute is simply not applicable.
In the Palma analysis the Florida Supreme Court was focused on a very singular issue — “when does a dispute relating to attorney’s fees fall within the scope of Section 627.428”. (Palma, at 832) Florida Statute 627.428 is the identical statute argued by Plaintiff for the recovery of attorney fees in this action. (See Paragraph 17 of Complaint) In its analysis the Palma Court opined attorney fees may not be awarded for litigating the amount of attorney fees. Specifically the Court states:
The language of the statute [F.S. 627.428] does not support such a conclusion. Such work inures solely to the attorney’s benefit and cannot be considered services rendered in procuring full payment of the judgment.
The Palma Court highlighted the need to analyze the specific language of the specific statute in play. Following the Palma Court, the Oruga Court analyzed the language of Florida Statute 768.79 and determined that an award of attorney fees for the time spent litigating the amount of attorney fees does not comport with the purpose of the statute.
For this case, Palma and Oruga are factually distinguishable. Unlike Palma and Oruga, this case has a Proposal for Settlement served for the purpose of locking down a basis to argue entitlement to attorney fees for the time spent litigating attorney fees. This decision turns not on whether you can recover attorney fees for litigating the amount of attorney fees but whether the litigation of the amount of attorney fees constitutes a part of the civil action/legal claim raised by Plaintiff whereupon a Proposal for Settlement can be asserted. In this regard, Palma and Oruga are helpful because in the first instance we must analyze the language of Florida Statute 768.79 to determine its applicability.
Florida Statute 768.79 applies “In any civil action for damages in the courts of this state”. This case is easily a civil action for damages. This action sought “damages occurring to the truck during its theft, interest, costs associated with filing this action, and attorney’s fees”. (see Complaint, prayer.)
As clearly recited in the Complaint Plaintiff seeks attorney fees pursuant to Florida Statute 627.428. The Palma Court concluded that attorney fees incurred litigating the amount of attorneys fees is not included within F.S. 627.428. Accordingly, as a matter of law the attorney fees being pursued at this moment are not a recoverable part of the civil action filed. Therefore, the “civil action” [the Complaint] filed in the instant case was concluded for all substantive purposes. It is this Court’s opinion that Florida Statute 768.79 does not apply to matters outside of the “civil action” asserted. For this Court to hold otherwise would breathe life into matters that are not otherwise independently sustainable.
For all of the foregoing reasons Defendant’s Motion to Strike and Response to Plaintiff’s Motion for Entry of Final Judgment for Attorney Fees and Costs Pursuant to Proposal for Settlement is GRANTED.
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