21 Fla. L. Weekly Supp. 199a
Online Reference: FLWSUPP 2102BOGRInsurance — Personal injury protection — Attorney’s fees — Proposal for settlement — Insurer’s $1 proposal for settlement, which included attorney’s fees, was not made in good faith where offer did not bear reasonable relationship to amount of damages or realistic assessment of liability since insurer had already confessed judgment and acknowledged liability for medical provider’s attorney’s fees and costs — Justiciable issues — Continuing to litigate despite exhaustion of benefits does not warrant section 57.105 sanction against provider
PEMBROKE PINES MRI, INC., Nomi Bogrow, Plaintiff, vs. USAA CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 09-009441-50-COCE. October 25, 2013. Peter B. Skolnik, Judge.
ORDER DENYING DEFENDANT’SMOTIONS FOR ATTORNEY’S FEES
On October 22, 2013 the Court heard Defendant’s Motion for Attorney’s Fees and Costs. Having considered the record, arguments and authorities presented, the Court finds:Background
On April 27, 2010 Defendant filed a Notice of Filing Confession of Judgment and Acknowledgment and Entitlement to Attorney’s Fees and Costs. Concurrent with said filing Defendant tendered to Plaintiff what it maintained was the remaining amount of PIP benefits available to the insured for the subject date of loss. Plaintiff continued litigation to pursue the balance of its bill, arguing that Defendant could not avoid paying the reasonable amount of the charges due an exhaustion of benefits defense, because the insured had sufficient PIP benefits remaining to pay the reasonable amount of Plaintiff’s bill thirty days after said bill was received. Five months later Defendant served plaintiff with a $1.00 proposal for settlement and a motion for sanctions pursuant to F.S. §57.105. Plaintiff did not accept the proposal for settlement nor did it dismiss the action. This Court entered summary judgment in favor of Defendant on its exhaustion of benefits defense. Defendant then moved for an award of its attorney’s fees and costs based upon the unaccepted proposal for settlement and F.S. §57.105.Proposal for Settlement
The Court finds that Defendant is not entitled to an award of attorney’s fees pursuant to its proposal for settlement because its offer was not made in good faith. “The spirit of the offer of judgment statute is to encourage litigants to resolve cases early to avoid incurring substantial amounts of court costs and attorney’s fees. . .The offer bore no reasonable relationship to the amount of damages or realistic assessment of liability. It was instead based on defendant’s unilateral belief and subjective determination, before discovery had commenced, that this was a case of no liability.” Eagleman v. Eagleman, 673 So.2d 946 at p. 948 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1192a].
The terms of the proposal for settlement required Plaintiff to execute a release and a voluntary dismissal with prejudice. Because Plaintiff had an entitlement to its attorney’s fees and costs, which Defendant acknowledged in its April 27, 2010 confession of judgment, Plaintiff’s act of accepting the proposal for settlement would have precluded Plaintiff from obtaining the attorney’s fees to which it was entitled because a voluntary dismissal would have divested the Court of jurisdiction to award Plaintiff its attorney’s fees and costs. Jabri, Inc. v. U Save Motors, Inc., 971 So.2d 912 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D2936b].
In this case the Court finds that Defendant’s $1.00 proposal for settlement, which included attorney’s fees, did not bear a reasonable relationship to the amount of damages or realistic assessment of liability because Defendant had already confessed judgment and acknowledged liability for the payment of Plaintiff’s attorney’s fees. Defendant’s exposure to liability for those attorneys fees and costs alone was for far more than $1.00.
At the hearing Defendant’s counsel argued that the letter accompanying its proposal for settlement invited Plaintiff to contact Defendant’s counsel if Plaintiff determined that the proposal was vague or ambiguous, so that any such vagueness or ambiguity could be cleared up. The Court finds that the proposal for settlement was clear and unambiguous. That the $1.00 proposal did not take into account that Defendant conceded entitlement to Plaintiff’s attorney’s fees does not render it vague or ambiguous. Moreover, if the proposal was ambiguous, Defendant would not be able to enforce it. Andrews v. Frey, 66 So. 3d 376, 378 (Fla. 5th DCA 2011) [36 Fla. L. Weekly D1644b] (“The proposal’s terms must also be ‘sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification. If ambiguity within the proposal could reasonably affect the offeree’s decision,’ it will be invalidated for failing rule 1.442’s requirement that all conditions and nonmonetary terms be stated with particularity. State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla.2006) [31 Fla. L. Weekly S358a].F.S. §57.105
The Court also denies Defendant’s motion for sanctions made pursuant to F.S. §57.105 and declines to award attorney’s fees on that basis. The exhaustion of benefits issue is a hotly contested issue with decisions going either way. In fact, in a case involving the same exhaustion of benefits issue as this matter, this Court previously ruled against USAA in Oakland Park MRI, Inc. (Antonia Gale) v. USAA Casualty Insurance Company, 17 Fla. L. Weekly Supp. 477a (Broward County Case No: 07-12690 COCE (50) February 22, 2010). In fact, the Gale matter is still on appeal — now before the Fourth District Court of Appeal. Case No. 4D13-688 consolidated with 4D12-2008.
Based upon the foregoing, it is ORDERED AND ADJUDGED that:
1. Defendant’s Motion for Attorney’s Fees is denied.
2. The Court reserves ruling on the issue of Plaintiff’s attorney’s fees and costs.
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