22 Fla. L. Weekly Supp. 311a
Online Reference: FLWSUPP 2203KEGOInsurance — Coverage — Relatedness of injury — No error to deny motion for directed verdict on issue of relatedness of claimant’s injuries to automobile accident where jury could have concluded that, because no documentation indicated that claimant’s right shoulder and arm impacted vehicle, pain on claimant’s right side was not related to accident — Attorney’s fees — Settlement proposal that indicated insurer’s intent to avoid resolving attorney’s fees is not ambiguous as to entitlement to fees — Appellate fees — Although insurer consistently requested appellate attorney’s fees under section 768.79(3), which does not provide substantive basis for awarding fees, appellate court overlooks error and grants motion for fees under section 768.79(1)
HEALTH USA CORPORATION, a/a/o Kenia Gonzalez, Appellant-Plaintiff, v. U.S. SECURITY INSURANCE COMPANY, Appellee-Defendant. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 12-157 AP. L.T. Case No. 09-1233 SP 26. August 18, 2014. Order on Attorney’s fees August 18, 2014. On appeal from final orders rendered by the Miami-Dade County Court, Hon. Lourdes Simon. Marlene S. Reiss, Marlene S. Reiss, P.A., for the Appellant-Plaintiff. Douglas H. Stein, Seipp & Flick, for the Appellee-Defendant.
(Before TINKLER MENDEZ, SAYFIE, and REBULL, JJ.)
(PER CURIAM) Health USA Corporation (“medical provider” or “provider”) filed a contractual breach action against U.S. Security Insurance Company (“insurer” or “insurance company”). The trial court denied the provider’s motion for a directed verdict and the insurance company’s motion for section 768.79, Florida Statutes, attorney’s fees. We affirm the order denying the provider’s motion for a directed verdict and vacate the order denying section 768.79(1) attorney’s fees. We have jurisdiction to review both orders. Fla. R. App. P. 9.030(c)(1)(A) & 9.110(h); BDO Seidman, LLP v. British Car Auctions, Inc., 789 So. 2d 1019, 1020 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D476a].Directed Verdict Analysis (Case No. 12-157 AP)
The provider argues that the trial court should have granted its motion for a directed verdict on the relatedness issue since no testimony established that the claimant “sustained injuries in that [slip and] fall” or that “the injuries claimed in” the July 2008 accident relate to the prior slip and fall. We review an order denying a motion for a directed verdict de novo. Miami-Dade County v. Eghbal, 54 So. 3d 525, 526 (Fla. 3d DCA 2011) [36 Fla. L. Weekly D73c]. We evaluate the evidence “in the light most favorable to the non-moving party [the insurer], drawing every reasonable inference flowing from the evidence in the non-moving party’s [insurer’s] favor.” Id. If “different reasonable inferences may be drawn from the evidence, then the issue is factual and should be submitted to the jury for resolution.” Id.
Dr. Tamayo’s testimony justified submitting the relatedness issue to the jury. During cross-examination, he testified that the claimant “had pain in the right elbow, the right shoulder”, and “right wrist”, and that “there is no documentation about any impact of her “right shoulder, right forearm or right wrist on any part of the car” (Trial Tr. 163:9-20, Feb. 14, 2008). Drawing an inference in the insurer’s favor, a jury could conclude that because no documentation indicated that the claimant’s right shoulder, forearm, or wrist impacted the vehicle during the accident, the pain in her right side did not result from the July 2008 accident. We affirm the order denying the motion for a directed verdict.Trial Court’s Section 768.79 Attorney’sFees Order (Case No. 12-308 AP)
After final judgment, the trial court denied the insurer’s motion for section 768.79 attorney’s fees. Relying upon the proposal’s fifth (5th) paragraph, the court found that the proposal did not stipulate entitlement to fees and considered the settlement offer ambiguous.
On appeal, the insurer asserts that the trial court incorrectly found the settlement proposal ambiguous and defective. According to the insurer, the words “if any” refer to the attorney’s fees’ amount rather than entitlement to fees. We review whether a proposal contains an ambiguity de novo. Alamo Fin., L.P. v. Mazoff, 112 So. 3d 626, 628 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D902a]. We strictly construe section 768.79 and Rule 1.442 since these provisions derogate ‘The common law rule that each party pay its own attorney’s fees”. Id. Upon finding a proposal ambiguous, such proposal becomes unenforceable. Id. at 628. A proposal shall “state whether” it “includes attorneys’ fees and whether attorneys’ fees are part of the legal claim”. Fla. R. Civ. P. 1.442(c)(2)(F). Rule 1.442 “merely requires” that the proposal use “sufficiently clear and definite” language “to allow the offeree to make an informed decision without needing clarification”. Mazoff, 112 So. 3d at 629.
Here, the proposal acknowledged that the provider’s legal claim includes attorney’s fees, but the settlement proposal specifically communicated that it does not include attorney’s fees. The proposal also stated the total offer as $1500.00 for benefits exclusive of attorney’s fees. See R. 611, ¶¶ 3-5. Although indicating an intent to exclude attorney’s fees, the insurer nonetheless included a condition involving attorney’s fees:
if the Plaintiff [provider] timely accepts the Defendant’s Offer of Judgment, then the issue of the amount of reasonable and necessary attorney fees and taxable costs incurred by the Plaintiff to obtain the result achieved up to the date and time of the service of this Offer of Judgment, if any, shall be determined by the Trial Court.
Id. at ¶ 5 (emphasis added). Because paragraph five (5) does not use the word entitlement, we conclude that “if any” refers to amount rather than entitlement.1We find that the settlement proposal indicated the insurer’s intent to avoid resolving attorneys’ fees. We hold that no ambiguity exists as to entitlement, vacate the order denying section 768.79 attorneys’ fees, and remand for further proceedings. See Vines v. Mathis, 867 So. 2d 548, 549 (Fla. 1st DCA 2004) [29 Fla. L. Weekly D496c] (absent “finding” that an “offer of judgment was not made in good faith, the trial court’s entry of a no liability judgment mandated an award of fees and costs incurred after the date the offer was served”).
MOTION FOR APPELLATE ATTORNEYS’ FEES
We address the insurer’s motion for appellate attorney’s fees in Case No. 12-157 AP separately as we find it problematic. The insurer requested appellate attorney’s fees pursuant to section 768.79(3), Florida Statutes (1997). Section 768.79(3) states that “[t]he offer shall be served upon the party to whom it is made, but it shall not be filed unless it is accepted or unless filing is necessary to enforce the provisions of this section”. Clearly, subsection (3) does not entitle a litigant to attorneys’ fees. See Progressive Express Ins. Co. v. Med-Union Med. Center, Inc., a/a/o DeSouza, 18 Fla. L Weekly Supp. 1113a n.1 (Fla. 11th Cir. Ct. Sept. 22, 2011) (same appellate counsel citing the incorrect subsection), abrogated on other grounds, United Auto. Ins. Co. v. John S. Virga, D.C., P.A., 116 So. 3d 1288, 1289 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D1576b].2
A motion for appellate fees “shall state the grounds on which recovery is sought”. Fla. R. App. P. 9.400(b). In this matter, the insurer referenced section 768.79 but incorrectly cited subsection (3) as the basis for fees. The insurer’s counsel did not consistently request fees pursuant to subsection (1) and then refer to subsection (3) once, thus indicating a simple error. Rather, counsel requested subsection (3) fees throughout his motion. See Mot. for Fees ¶¶ 1, 3, 4. Although subsection (3) does not provide a substantive basis for awarding fees, we overlook counsel’s error and request that he cite the correct subsection in future appellate motions.3 Since we affirm the order denying a directed verdict for the provider, this insurer obtains a “no liability” judgment, thus satisfying section 768.79(1). Accordingly, we grant the insurer’s motion for appellate fees pursuant to section 768.79(1), the correct subsection. Cf. Jefferson v. City of Lake City, 965 So. 2d 174, 175 (Fla. 1st DCA 2007) [32 Fla. L. Weekly D1909c].
We resolve the parties other motions for appellate attorney’s fees by separate order. [Editor’s note: Order Granting and Denying Appellate Attorney’s fees published below.]
AFFIRMED IN PART, VACATED IN PART, and REMANDED.
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1See Encompass Inc. v. Alford, 444 So. 2d 1085, 1086-1087 (Fla. 1st DCA 1984) (“unless the offer and acceptance affirmatively indicate that the amount specified in the offer is to include attorney’s fees, the plaintiff, by accepting the offer, is not precluded from seeking attorneys fees to which he may be entitled by statute”) (emphasis added).
2Other panels granted fees pursuant to section 768.79(3). State Farm Fire & Cas. Co. v. Global Med. Rehab Center, 21 Fla. L. Weekly Supp. 115a (Fla. 11th Cir. Ct. Oct. 21, 2013); Progressive Auto Pro Ins. Co. v. Gary H DiBlasio, MD., PA., 14 Fla. L. Weekly Supp. 534a (Fla. 15th Cir. Ct. Mar. 23, 2007), cert. denied, 4D07-1640 (Fla. 4th DCA Aug. 6, 2007).
3See R. Reg. Fla. Bar 4-3.3 cmt. (“An advocate is responsible for pleadings and other documents prepared for litigation”).
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(Before TINKLER MENDEZ, SAYFIE, and REBULL, JJ.)ORDER GRANTING AND DENYINGAPPELLATE ATTORNEYS’ FEESCase No. 12-157 AP
On May 29, 2012, the provider moved this Court for section 627.428(1), Florida Statutes, attorneys’ fees. Section 627.428(1) authorizes us to award fees to an insured when we adjudge “against the insurer”. Because we affirm the order denying the provider’s motion for directed verdict, the provider does not obtain a judgment against the insurer. Thus, we deny the provider’s May 29, 2012 motion for section 627.428(1) appellate fees.Case No. 12-308 API.
On March 29, 2013, the insurer requested appellate attorney’s fees pursuant to section 768.79(3). Although, section 768.79(3) does not provide a substantive basis to award appellate fees, we presume that the insurer’s appellate counsel intended to request fees pursuant to subsection (1). By affirming the order denying a directed verdict in the provider’s favor, this insurer satisfies section 768.79(1) by obtaining a “no liability” judgment. § 768.79(1), Fla. Stat. (1997). Accordingly, we grant the insurer’s motion for section 768.79(1) appellate attorney’s fees. Cf. Jefferson v. City of Lake City, 965 So. 2d 174, 175 (Fla. 1st DCA 2007) [32 Fla. L. Weekly D1909c] (affirming the order granting attorney fees and reasoning that although the proposal cited “a nonexistent statute as its basis, the notice of proposal for settlement” cited “the correct statute number”).II.
On September 4, 2013, the provider requested section 627.428(1) appellate attorney’s fees. Because we vacated the order denying the insurer’s request for settlement proposal fees, this provider does not prevail by obtaining a judgment against the insurer. Therefore, section 627.428(1) does not entitle this provider to appellate fees. Accordingly, we deny this motion.
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