19 Fla. L. Weekly Supp. 210a
Online Reference: FLWSUPP 1903PARIInsurance — Personal injury protection — Attorney’s fees — Proposal for settlement — Good faith — Nominal settlement offer was made in good faith where all available PIP benefits had been exhausted by confession of judgment payment
PEMBROKE PINES MRI, INC. (A/A/O JACK PARIS), Plaintiff, vs. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. 09-09458 COCE 51. November 29, 2011. Honorable Martin R. Dishowitz, Judge. Counsel: Charles Kane, for Plaintiff. Reuven T. Herssein, Law Offices of Herssein & Herssein, P.A., North Miami, for Defendant.
ORDER GRANTING ENTITLEMENT TOATTORNEY’S FEES AND COSTS TO USAACASUALTY INSURANCE COMPANY
THIS CAUSE came before the Court on August 26, 2011, for hearing on USAA Casualty Insurance Company’s [“USAA”] Motion for Entitlement to Attorney’s Fees and Costs, and the Court’s having reviewed the Motion, the entire Court file, and the relevant legal authorities; having heard argument of counsel; having made a thorough review of the matters filed on record; and having been sufficiently advised on the premises, the Court finds as follows:
The narrow issue before this Court is whether an insurer, as the prevailing party in a case, is entitled to an award of it’s attorney’s fees and costs, pursuant to Fla. R. Civ. P. 1.442 and Fla. Stat. §§768.79 and §57.105.Findings of Fact
On October 13, 2010 [in light of and in accordance with the Fourth District Court of Appeal ruling in the case of USAA Casualty Insurance Company v. Pembroke Pines MRI Inc. (a/a/o/ Megan Cahill) Case no. 4D80-4360] [35 Fla. L. Weekly D613b]USAA Confessed Judgment and stipulated to Plaintiff’s entitlement to attorney’s fees and costs, up to that date. The confession of judgment payment made on October 13, 2010 exhausted all available PIP benefits under the policy at issue to Plaintiff. USAA then placed the Plaintiff on notice that as of October 13, 2010 all policy benefits available to the claimant had exhausted. USAA, in accordance with Fla. Stat. §57.105, gave the Plaintiff the requisite 21 day safe harbor in which to dismiss the lawsuit, but Plaintiff chose not to do so. USAA timely filed its Motion for Sanctions Pursuant to, and in Accordance with, Florida Statute §57.105. On October 28, 2010, USAA served the Plaintiff with a Proposal for Settlement, pursuant to and in accordance with Fla. R. Civ. P. 1.442, and Fla. Stat. §768.79, which was not accepted, and therefore, expired.
On April 8, 2011, based on the case law1 on the benefits exhaustion issue,2 this Court granted Summary Judgment in favor of USAA and ruled that the Plaintiff is entitled to reasonable attorney’s fees and costs up to the October 13, 2010 confession of judgment; that Plaintiff is not awarded any further benefits or interest than that already received in this action; and, finally, predicated on Plaintiff’s counsel disputing entitlement, USAA’s entitlement to attorney’s fees and costs remained in dispute and would be resolved at a future entitlement hearing [18 Fla. L. Weekly Supp. 613a].
Subsequent thereto, as the prevailing party [after the October 13, 2010 confession] USAA timely filed its Motion for Attorney’s Fees and Costs pursuant to Fla. R. Civ. P. 1.442 and Fla. Stat. §§768.79 and §57.105. There is no dispute that the Plaintiff received both the proposal for settlement, and the 57.105 motion, and that USAA met all the technical [service] requirements.
The Plaintiff contests USAA’s entitlement to attorney’s fees and costs pursuant to Fla. Stat. §768.79, alleging that USAA’s proposal for settlement was vague and was not made in good faith. Plaintiff’s allegation of a bad faith offer is predicated on the fact that Defendant offered a nominal proposal for settlement of $1.00. Plaintiff also argues that this Court should deny entitlement to USAA [as the prevailing party] and deem the $1.00 offer an offer not made in good faith, because in some other completely separate and unrelated cases [where USAA is represented by the Law offices of Herssein & Herssein P.A.,] USAA has served $1.00 offers of Judgment as well. Plaintiff argued that the conditions of the proposal for settlement were not met in order to entitle USAA to attorney’s fees and costs, pursuant to the offer of judgment Statute. They also allege USAA failed to meet the requisite standard for an award of attorney’s fees and costs, pursuant to Florida Statute §57.105.Conclusions of Law
In this Courts’ view, with certain exceptions, each case should be evaluated on its own merits. Based on the totality of the whole case record, in addition to the specific facts and circumstances of this particular case, the Court finds that the proposal for settlement was factually and legally sufficient; USAA had a reasonable foundation to make the $1.00 offer in this case; the $1.00 offer of judgment was reasonable under the circumstances of this case and made in good faith.
Accordingly, this Court finds that USAA is entitled to recover reasonable attorney’s fees and costs incurred in defense of the instant suit, in accordance with Fla. R. Civ. P. 1.525, Fla. R. Civ. P. 1.442, Fla. Stat. §768.79, and denies the award of attorney’s fees sought by USAA pursuant to Fla. Stat. §57.105.
The Court reserves jurisdiction to determine [at an evidentiary hearing] the amount of reasonable attorney’s fees and costs.
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1Progressive American Insurance Co. v. Stand-up MRI of Orlando, 990 So.2d 3 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1746a]. Simon v. Progressive Express Insurance Co., 904 So.2d 449 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1156b], and Progressive Express Insurance Company v. Millennium Diagnostic Imaging Center, Inc. a/a/o Alfonso Taboada, 14 Fla. L. Weekly Supp. 938a (Fla. 11th Jud. Cir. July 19, 2007). cert. denied, 2008 Fla. App. Lexis 10301 at * 1, 33 Fla. L. Weekly D1742b (Fla. 3d DCA July 9. 2008).
2This Court granted Final Summary Judgment in favor of USAA, finding that an insurer is not responsible for payment of any further benefits once PIP benefits have been exhausted under the policy, unless the insurer acts in bad faith in denying the claim, however, bad faith does not exist when an insurer takes a legal position, relying upon the status of the law at that time, when there is no binding authority stating otherwise.
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