20 Fla. L. Weekly Supp. 369a
Online Reference: FLWSUPP 2004URBAInsurance — Personal injury protection — Attorney’s fees — Offer of judgment — Where offer of judgment, which was accepted, clearly stated that attorney’s fees were to be paid up until date of service of offer of judgment, trial court erred by granting attorney’s fees after date of service of offer
US SECURITY INSURANCE CO., Appellant, vs. PROGRESSIVE REHABILITATION & ORTHOPEDIC SERVICES a/a/o STEPHANIE URBAN, Appellee. Circuit Court, 11th Judicial Court (Appellate) in and for Miami-Dade County. Case No. 11-211 AP. L.T. Case No. 08-004105 CC 21. January 14, 2013. An appeal from a decision by the County Court in and for Miami-Dade County, Florida, Ana M. Pando, Judge. Counsel: David B. Pakula, for Appellant. Kelly M. Arias, for Appellee.
(Before: BETH BLOOM, JOHN SCHLESINGER, and MILTON HIRSCH, JJ.)
(PER CURIAM.) This appeal is from a final judgment awarding attorney’s fees and costs to appellee Progressive Rehabilitation & Orthopedic Services a/a/o Stephanie Urban (Progressive Rehab). The appellant US Security Insurance Company (US Security) contests the amount of the fee award.
On August 4, 2008, Progressive Rehab hired attorney Richard Patino to represent it in a suit for PIP benefits against the appellant. Injured insured, Stephanie Urban, was treated for injuries arising out of a motor vehicle accident. The complaint for PIP benefits alleged that the bills were timely submitted to the insurer. In its answer, US Security admitted the bills were timely submitted (see Answer to ¶18 of Plaintiff’s Complaint) and denied the bills were timely submitted (see Answer to ¶13 of Plaintiff’s Complaint). On December 4, 2008, US Security served an offer of judgment to Progressive Rehab in the amount of $4000.00. The offer was for a complete settlement of Progressive Rehab’s claims including PIP benefits and interest, but exclusive of attorney’s fees. The offer of judgment stated:
[I]f the Plaintiff timely accepts the Defendant’s Offer of Judgment, then the issue of the amount of reasonable and necessary attorney’s fees and taxable costs incurred by the Plaintiff to obtain the results achieved up to the date and time of the service of this Offer of Judgment, if any, shall be determined by the Trial Court.
Upon deposition of US Security’s adjuster on October 13, 2009, it was discovered that the bills were not timely submitted.
At a pretrial conference held on November 10, 2009, US Security petitioned the trial court to amend its answer to assert untimely billing as an affirmative defense. The trial court granted the motion to amend on the condition that the December 4, 2008 offer of judgment would be deemed to be filed as of November 10, 2009. The Order by the trial court states: “Plaintiff is allowed an additional 30 days from today’s date to accept or reject the Defendant’s proposal for settlement. The date of filing shall be deemed to be today.” The following day, Mr. Patino filed a notice of acceptance of US Security’s proposal for settlement.
Following the acceptance of the proposal for settlement, Progressive Rehab moved for an award of reasonable fees and costs pursuant to section 627.428 and 627.736, Florida Statutes. Progressive Rehab submitted its timesheets, and US Security filed its expert’s line by line objections. In addition to these objections, US Security objected to “all attorney time after 12-4-08 as the proposal for settlement tendered contained that date as the cut off date for attorney fees.” Overruling the objection, the trial court awarded to Mr. Patino 66.9 billable hours, the majority incurred after December 4, 2008, at $425.00 per hour. The total fee amounted to $28,432.50 plus an expert witness fee, interest and costs, for a total attorney’s fee judgment of $39,209.48.
Appellant cites Danis Industries Corp. v. Ground Improvement Techniques, Inc., 645 So. 2d 420 (Fla. 1994) as support for its contention that the case espouses a rule whereby an insured cannot continue to incur attorneys fees and costs after the insurer has offered the full amount for which it has liability, on the date offers to make the payment. Id. at 442. Appellant continues by stating that the Florida Supreme Court clarified Danis in Scottsdale Insurance Co. v. DeSalvo, 748 So. 2d 941 (Fla. 1999) [24 Fla. L. Weekly S422a] wherein “[T]he insurer or surety relieves itself from further exposure to the insured or beneficiary’s attorney’s fees at the point in time that the insurer or surety offers and settlement the full amount which the insured or beneficiary would be entitled to recover from the insurer or surety at the time the offer is made.” Id. at 944-45. The appellant argues that the offer of judgment was a valid offer of judgment and should be enforced as written upon the acceptance of it by the appellee. As written, appellant contends, the agreement allowed recovery of reasonable and necessary fees incurred by Progressive Rehab to obtain the results achieved up to the date of service of the proposal, that is, December 4, 2008.
Appellee argues that this Court should make a fairness exception to the Danis Industries rule.
Because an offer of judgment is in the nature of the contract, construction of the offer of judgment must be governed solely by the language employed by the parties if it is without ambiguity. BMW of North America, Inc. v. Krathen, 471 So. 2d 585, 587 (Fla. 4th DCA 1985). “[W]here a contract is silent as to a particular matter, courts should not, under the guise of construction, impose on parties contractual rights and duties which they themselves omitted. See Southern Crane Rentals, Inc. v. City of Gainesville, 429 So. 2d 771 (Fla. 1st DCA 1983).” Id.
The trial court had no discretion to override the clear language of an offer of judgment. McIntyre v. Lindsey, 488 So. 2d 888, 889 (Fla. 1st DCA 1986). In this case, the offer of judgment was accepted; a contract was formed.
The language of the (accepted) offer of judgment was clear, attorneys fees were to be paid up until the date of the service of the offer of judgment. By granting attorney’s fees to the appellee after the date of the service of the offer of judgment, the trial court rewrote the parties’ contract/settlement agreement. “Interpretation of settlement agreements is governed by contract law. See Munroe v. U.S. Food Serv., 985 So. 2d 654, 655 (Fla. 1st DCA 2008) [33 Fla. L. Weekly D1664d]. Contracts are to be construed in accordance with the plain meaning of the words contained therein, and it is never the role of a trial court to rewrite a contract to make it more reasonable for one of the parties. See Churchville v. GACS Inc., 973 So. 2d 1212, 1216 (Fla. 1st DCA 2008) [33 Fla. L. Weekly D275a].” Ferreira v. Home Depot, 12 So. 3d 866, 868 (Fla. 1st DCA 2009) [34 Fla. L. Weekly D1151a]. The trial court committed reversible error by not enforcing the parties’ settlement agreement as written.
REVERSED and REMANDED for the trial court to enforce the parties’ settlement agreement as written.
Appellee’s motion for appellate attorney’s fees is hereby DENIED.
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