21 Fla. L. Weekly Supp. 431a
Online Reference: FLWSUPP 2105ROMEInsurance — Personal injury protection — Attorney’s fees — Offer of judgment — Where medical provider rejected insurer’s $1.00 offer of judgment in PIP suit in which insurer raised affirmative defense that demand letter was not sent to designated recipient, provider sent second demand letter during pendency of suit, and insurer paid amount demanded in second letter, insurer’s payment to provider was not confession of judgment entitling provider to award of attorney’s fees — Final judgment that did not award provider anything was at least 25% of amount offered by insurer and entitles insurer to award of attorney’s fees
AMERICAN MRI, LLC (A/A/O JOHN ROMERO), Plaintiffs, vs. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 08-2558 SP 23 (04). December 31, 2013. Jason Emilios Dimitris, Judge. Counsel: Michael P. Brodi, Florida Law Center, P.A., N. Miami; and Marlene S. Reiss, Marlene S. Reiss, P.A., Miami, for Plaintiff. Reuven Herssein, Herssein Law Group, North Miami, for Defendant.
ORDER GRANTING MOTION FORATTORNEY’S FEES AND COSTS
THIS cause came before the Court on Defendant’s Motion for Attorney’s Fees and Costs.
After careful consideration of the Motion, arguments made by both parties, relevant statutes and case law, the Court’s findings are set forth below.BACKGROUND
American MRI, LLC (Plaintiff) is the assignee of benefits of a PIP insurance policy issued by Defendant USAA Casualty Insurance Company (Defendant). Plaintiff provided medical services to the policy holders, was assigned the benefits of the policy, and sent a demand letter to the Defendant on May 1, 2007 in accordance with Florida Statute § 627.736(11). Plaintiff filed suit after the Defendant failed to pay the claim. The Defendant filed an Answer which included an affirmative defense that the Plaintiff’s May 1, 2007 demand letter failed to comply with the statutory requirements of § 627.736(11). Subsequently, the Defendant moved for summary judgment based upon this defense specifically arguing that the demand letter was not mailed to the designated recipient. In response, Plaintiff moved this Court1 to abate the action in order to allow them the opportunity to send a second demand letter that would cure the defect that Defendant alleged. Prior to the this Court issuing a decision as to whether to abate the action, the Plaintiff sent out a second demand letter. On May 6, 2009, this Court held that Plaintiff’s first demand letter sufficiently complied with § 627.736(11), but deferred ruling as to whether the letter demanded the proper amount. On May 27, 2009, the Defendant paid Plaintiff the amount requested in the second demand letter.
On September 9, 2009, the Plaintiff filed a Motion for entitlement to attorney fees and costs pursuant to F.S. § 627.428 which was granted by this Court. Specifically, on November 6, 2009, this Court held that Defendant’s payment of the amount requested in the second demand letter was the equivalent of a confession of judgment and entered Final Judgment awarding fees and costs on June 29, 2010. Following an appeal by the Defendant on March 19, 2012, the Circuit Court reversed this Court’s determination that the Plaintiff was entitled to attorney’s fees after concluding that Defendant’s payment pursuant to the second demand letter did not fit within the parameters of the “confession of judgment” rule. Circuit Court Opinion at 5. In explaining its reasoning, the Circuit Court stated that Defendant’s “payment to settle the claim was not a unilateral decision catalyzed by the initiated lawsuit. But rather was prompted by Plaintiff’s second demand letter and representations that it would not seek attorney’s fees should Defendant pay pursuant to that demand letter.” Id. This case was remanded back to this Court to consider Defendant’s Motion for Attorney’s Fees Pursuant to Proposal for Settlement and for further proceedings consistent with the Circuit Court’s ruling. Id. at 6.
Following remand, the Defendant filed a Motion for Final Judgment in favor of the Defendant pursuant to the Circuit Court’s May 19, 2012 Opinion finding that the Defendant’s May 27, 2009 payment to Plaintiff was not a confession of judgment. Plaintiff, in response, filed an opposition to the Defendant’s Motion for entry of Final Judgment. On October 4, 2012, this Court entered Final Judgment for Defendant. Following entry of Final Judgment, Plaintiff moved this Court to vacate Final Judgment pursuant to Fla.R.Civ.P. 1.540. On December 13, 2013, this Court heard argument from both parties on Defendant’s Motion for Attorney’s Fees and Costs and Plaintiff’s Motion to Vacate Final Judgment. Following presentment of argument, this Court denied Plaintiff’s Motion to Vacate Final Judgment on December 31, 2013 and therefore, the only Motion now before this Court is Defendant’s Motion for Attorney’s Fees and Costs pursuant to F.S. § 768.79.ANALYSIS
F.S. § 768.79 states in relevant part as follows:
(1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of the filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award.
. . .
F.S. § 768.79.
In Defendant’s Motion for Attorney Fees and Costs, the Defendant argues that they are entitled to attorney’s fees and costs in reliance upon the fact that on February 13, 2009, Defendant served a Proposal for Settlement on Plaintiff offering $1.00 which expired and therefore was rejected. Defendant’s Motion for Attorney’s Fees and Costs p. 2. Under F.S. § 768.79, if there is a judgment of no liability or one for at least twenty-five percent less than the offer of settlement, the offeror in this case, USAA Casualty, is entitled to attorney’s fees and costs. The Defendant states in its Motion that it is entitled to attorney’s fees and costs pursuant to F.S. § 768.79 since the Circuit Court and trial court specifically found that USAA’s payment to Plaintiff was not a confession of judgment in this action, and as a result, Plaintiff’s final judgment which did not award Plaintiff anything was “[at least] 25% of the amount offered by USAA.” Id. at 3. This Court finds that USAA obtained a qualifying judgment and that their offer of judgment complied with the technical mandates of the statute.
It is hereby, ORDERED AND ADJUDGED that Defendant’s Motion for Attorney’s Fees and Costs is HEREBY GRANTED. The Defendant shall file within 14 days of this Order a Motion with supporting case law as to the reasonableness of an attorney’s fees award under F.S. § 768.79(7)(b) especially in light of Central Motor Company d/b/a Central Hyundai v. Earline P. Shaw, 3 So.3d 367 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D160a]. Plaintiff shall file any response thereto within 14 days of Defendant’s filing.
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1As a Section Four case, this case was originally before Judge Eric Hendon. Judge Jason Emilios Dimitris assumed all Section Four cases as of April 2013.
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