22 Fla. L. Weekly Supp. 269c
Online Reference: FLWSUPP 2202VAZQInsurance — Personal injury protection — Attorney’s fees — Proposal for settlement — Nominal proposal — Good faith — Where there is nothing in record to indicate that policy limits had been exhausted at time insurer served nominal proposal for settlement or that insurer otherwise had little or no exposure in case at that time, proposal was not made in good faith — Insurer’s motion for attorney’s fees and costs is denied
ALTAMONTE SPRINGS DIAGNOSTIC IMAGING, INC. d/b/a MID FLORIDA IMAGING a/a/o JOSE VAZQUEZ, Plaintiff, v. FIRST FLORIDIAN AUTO AND HOME INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 10-SC-9405. September 11, 2014. Honorable Andrew L. Cameron, Judge. Counsel: Chad A. Barr, Eiffert & Associates, P.A., Orlando, for Plaintiff. David Kampf, Ramey & Kampf, Tampa, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR ENTITLEMENTTO ATTORNEY’S FEES AND COSTS PURSUANT TODEFENDANT’S PROPOSAL FOR SETTLEMENT
THIS MATTER came before the Court on July 21, 2014 on Defendant’s Motion for Entitlement to Attorney’s Fees and Costs pursuant to a Proposal for Settlement, and, being considered by the Court and otherwise being fully advised of the premises; it is hereby ORDERED AND ADJUDGED, for the reasons set forth below, that Defendant’s Motion is DENIED.
BACKGROUND
Plaintiff filed this action for the recovery of No-Fault benefits based on the Defendant’s reduction of the Plaintiff’s charges pursuant to what has been referred to in the past as OPPS Medicare reductions. After suit was filed, Defendant exhausted benefits. Defendant sent a proposal for settlement to the Plaintiff for $1.00. Defendant obtained a final judgment in this case and now seeks entitlement to attorney’s fees pursuant to its proposal for settlement.
STANDARD FOR A PROPOSAL FOR SETTLEMENT
Fla. Stat. 768.79 provides that a Defendant is entitled to reasonable costs and attorney’s fees if the Plaintiff does not accept an offer of judgment and the judgment later obtained is for no liability or at least 25% less than the original offer. Additionally, Fla. Stat. 768.79 provides that a court may, in its discretion, determine that an offer was not made in good faith and disallow an award of fees and costs if it is determined that the offer was not made in good faith. Event Svcs Am., Inc. v. Ragusa, 917 So.2d 882 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D1913a]; General Mechanical Corp v. Williams, 103 So.3d 974 (Fla. 1st DCA 2013) [37 Fla. L. Weekly D2856b]. Defendant admitted at the July 21, 2014 hearing that its proposal for settlement was a “nominal offer.” A reasonable basis for a “nominal offer” exists only where the “undisputed record” strongly indicates that the Defendant had no exposure in the case. Id. The “undisputed record” that is to be considered is the record at the time the offer was made. State Farm Fla. Ins. Co. v. Laughlin-Alfonso, 118 So.3d 314 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D1654a].
THE UNDISPUTED RECORD
At the time the Plaintiff filed its lawsuit in December of 2010, there were benefits remaining under the subject policy of insurance. There were no facts set forth as an avoidance of the Plaintiff’s claim filed by the Defendant in its Answer and Affirmative Defenses to put the Plaintiff on notice that benefits were exhausted. In fact, the undisputed record before the Court is that at the time the Defendant filed its Answer and Affirmative Defenses, benefits were not exhausted. Early on in this case, the parties entered into an Agreed Stay of the case awaiting the Second DCA’s opinion in Nationwide v. AFO Imaging. After AFO Imaging was decided by the Second DCA in June of 2011, the Defendant continued to contest the reasonableness of the Plaintiff’s charges. In August of 2011, the Plaintiff filed a motion for summary judgment. Defendant did not file a response. In November of 2011, the Defendant served its Proposal for Settlement for $1.00. The Defendant admitted at the July 21, 2014 hearing that its proposal for settlement was a nominal offer. Defendant now contends that benefits exhausted in this case in April of 2011, approximately seven (7) months before the proposal for settlement was served, and after the Defendant and Plaintiff had agreed to a stay of this action.
The record before the Court contains no evidence, documentation or otherwise to indicate whatsoever that benefits were exhausted as of the date that the Defendant served its proposal for settlement. In fact, the Defendant could not point to anything in the record showing that the Defendant had no liability in this claim because benefits were exhausted and the time Defendant served its proposal for settlement. The only undisputed record before the Court is that the Defendant did not make known that that benefits were exhausted for the first time until March of 2012 (some four (4) months after the proposal for settlement was served and nearly a year after Defendant claims that benefits were exhausted).
The Court finds that at the time of the Defendant’s service of its proposal for settlement, the undisputed record indicated that the Defendant faced at least some exposure. This is because at the time Defendant served its proposal for settlement, the Second DCA had issued its ruling in AFO Imaging thereby resolving the OPPS dispute between the parties. In addition, at the time the Defendant served its proposal for settlement, the Defendant was continuing to contest the reasonableness of the Plaintiff’s charges with absolutely no indication that benefits were exhausted. There was nothing in the record as of November of 2011 to indicate that the Defendant had little or no exposure in this case. As such, Defendant’s nominal proposal for settlement was not made in good faith. As such, Defendant’s Motion for Entitlement to Attorney’s Fees and Costs is DENIED.
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