20 Fla. L. Weekly Supp. 1041a
Online Reference: FLWSUPP 2011MERCInsurance — Personal injury protection — Attorney’s fees — Proposal for settlement — No merit to argument that proposal for settlement served nine days before summary judgment hearing was untimely because it did not afford medical provider thirty days to accept proposal where summary judgment order was not rendered until two months after hearing
MERCURY INSURANCE COMPANY OF FLORIDA, Appellant, v. HEALTHY SUNRISE, INC., (a/a/o Joanna San Martin), Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 11-693 AP. L.C. Case No. 08-8955 SP 25. Hearing On: March 27, 2013. Opinion filed May 13, 2013. On Appeal from the County Court for Miami-Dade County. Gloria Gonzalez-Meyer, Judge. Counsel: Scott W. Dutton and Dale E. Tarpley, Dutton Law Group, P.A., for Appellant. Marlene S. Reiss, for Appellee.
(Before, FIRTEL, BERNSTEIN, and CABALLERO, JJ.)
(CABALLERO, Judge.) The Appellant, Mercury Insurance Company, seeks review of the trial court’s denial of attorney’s fees after remand. The litigation between the parties commenced with a claim for Personal Injury Protection (PIP) benefits, where the subject insurance policy was purchased on October 16, 2007, during a “gap period” when no PIP Statute was in effect. The parties filed cross motions for summary judgment.
Mercury set the hearing on its motion for summary judgment for July 8, 2009. However, on June 29, 2009, nine days prior to the scheduled hearing, Mercury served Healthy Sunrise Inc. with a Proposal for Settlement. The trial court held a hearing on Mercury’s Motion for Summary Judgment, and at the end of the hearing, deferred ruling.
On or about September 1, 2009, approximately two months after the hearing, the trial court entered Final Summary Judgment in favor of Mercury. Mercury then filed its trial-level Motion to Tax Attorney’s Fees and Costs on September 25, 2009. No hearing on that motion occurred until April 25, 2011.
In the interim, Healthy Sunrise appealed the Final Summary Judgment to the Circuit Appellate Court. On April 15, 2011, this Court per curium affirmed the trial court’s grant of Final Summary Judgment in favor of Mercury Insurance. In doing so, the Circuit Appellate Court also granted Mercury’s motion for appellate attorney’s fees via a pre-printed form which directed that the case be remanded to determine the amount of a reasonable fee.
On April 25, 2011, after the case was affirmed on appeal, the trial court held a hearing on Mercury’s prior motion for trial level attorney’s fees based on the proposal for settlement. Healthy Sunrise argued that Mercury’s proposal for settlement was defective because Healthy Sunrise did not have 30 days to accept or reject the offer. Mercury argued that the Court did not rule on its Motion for Summary Judgment within 30 days and that the forty-five day rule of Florida Rule of Civil Procedure 1.442 (b) applies only to trials, not to dispositive motions. At no time during the hearing was there argument regarding entitlement to attorney’s fees based on the appellate remand as law of the case, nor was there mention of appellate attorney’s fees. At the end of the hearing, the trial court stated that it would conduct its own research, and ordered the parties to brief the pertinent legal issues regarding entitlement to attorney’s fees based on the proposal for settlement within twenty days of the hearing.
On or about October 17, 2011, the trial court entered an order denying Mercury’s motion for attorney’s fees. The order denying attorney’s fees did not include any explanation or reasoning. It is from this order that Mercury filed the instant appeal.
Mercury’s Motion for Appellate Attorney’s Fees was pursuant to section 768.79, Florida Statutes (the Offer of Judgment\Proposal for Settlement statute). Fla. Stat. § 768.79(1) creates a substantive right to attorney’s fees where a plaintiff refuses to accept an offer of judgment from the defendant and the ensuing judgment does not exceed the offer by at least twenty-five percent. See Bennett v. American Learning Systems of Boca Delray, Inc., 857 So. 2d 986, 987 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D2477a]. Once the statutory requirements have been met, the only discretion afforded the court is to disallow the attorney’s fee award if it finds that the offer was not made in good faith. Allstate Insurance Company v. Silow, 714 So. 2d 647, 649 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1765a]; Eagleman v. Eagleman, 673 So. 2d 946 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1192a]; TGI Friday’s v. Dvorak, 663 So. 2d 606 (Fla. 1995) [20 Fla. L. Weekly S436a]; Schmidt v. Fortner, 629 So. 2d 1036 (Fla. 4th DCA 1993). According to Mercury’s motion for attorney’s fees, it proposed to resolve the entire case in exchange for the payment of $101.00, and this included PIP benefits, interest, and attorney’s fees and costs. To not be liable for costs and attorney’s fees under section 768.79(1), an award to a plaintiff must receive a judgment of at least 25% greater than the amount of the offer. In this case, the Healthy Sunshine received $0.00. Healthy Sunshine is therefore liable under section 768.79(1). Fees to the prevailing party are mandatory under the statute, as long as the offer was made in good faith. Healthy Sunshine does not contest the offer on the issue of good faith.
Healthy Sunshine objects to the validity of the Proposal for Settlement, arguing that it was untimely. Healthy Sunshine argues that the proposal for settlement served by Mercury on June 29, 2009, nine days before a July 8, 2009 summary judgment hearing, did not give Healthy Sunshine the procedurally required 30 days to respond and was therefore a nullity. Healthy Sunshine bases its argument on Rule 1.442., “Proposals for Settlement”, which states in pertinent part as follows:
(b) Service of Proposal. A proposal to a defendant shall be served no earlier than 90 days after service of process on that defendant; a proposal to a plaintiff shall be served no earlier than 90 days after the action has been commenced. No proposal shall be served later than 45 days before the date set for trial or the first day of the docket on which the case is set for trial, whichever is earlier.
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(f) Acceptance and Rejection.
(1) A proposal shall be deemed rejected unless accepted by delivery of a written notice of acceptance within 30 days after service of the proposal. . . .
While it is undisputed that Mercury served a Proposal for Settlement on the Plaintiff on June 29, 2009, nine days before the hearing on its Motion for Summary Judgment, the trial court did not rule on the motion until about two months later, in September of 2009, when the trial court entered Mercury’s proposed Final Summary Judgment.
Healthy Sunshine contends that it did not have the opportunity to legally accept the proposal after the summary judgment hearing. Relying on the case of Kroener v. FIGA, 63 So. 3d 914 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1334a], Healthy Sunshine argues that Mercury’s offer terminated on the day of the summary judgment hearing, and thus, was a nullity. In both Kroener and in the instant case, the proposal for settlement was tendered within day(s) of the hearing on a summary judgment motion. However, Kroener is distinguishable because the insured accepted the proposal for settlement after the summary judgment order had been rendered. In the instant case, the summary judgment order was not rendered until approximately two months after the hearing, well beyond 30 days.
We therefore find that the proposal for settlement was timely under Fla. R. Civ. P. 1.442 and that Mercury is entitled to trial level attorney’s fees pursuant to section 768.79, Florida Statutes. Further, entitlement to appellate level attorney’s fees from the prior appeal is law of the case and should also be assessed by the trial court.
For the foregoing reasons, this case is hereby REVERSED and REMANDED for a hearing to determine the amount of trial level attorney’s fees, as well as appellate level attorney’s fees for both the instant and prior appeal. (FIRTEL and BERNSTEIN, JJ, concur.)
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