22 Fla. L. Weekly Supp. 956a
Online Reference: FLWSUPP 2208LAKEInsurance — Personal injury protection — Attorney’s fees — Proposal for settlement — Despite fact that insurer’s proposal for settlement was submitted before insurer amended its answer and affirmative defenses to assert demand letter issue on which it ultimately prevailed, where medical provider has made no showing that settlement offer was not made in good faith, insurer is entitled to award of attorney’s fees and costs
LAKE WORTH EMERGENCY CHIROPRACTIC CENTER PA AS ASSIGNEE OF, Plaintiff(s), v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division. Case No. 502009SC009288XXXXMB, Division RJ. January 15, 2015. Sandra Bosso-Pardo, Judge. Counsel: Martin Berger, Berger & Hicks, P.A., Miami, for Plaintiff. John Gioannetti, Roig Lawyers, Deerfield Beach, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FORENTITLEMENT TO ATTORNEY’S FEES AND COSTS
THIS CAUSE having come before the Court for hearing on December 16, 2014 on Defendant’s Motion for Entitlement to Attorney’s Fees and Cost and the Court having reviewed the motion; the entire Court file; and reviewing the relevant legal authorities; having heard arguments by Counsel; having made a thorough review of the matters filed on record; and having been otherwise fully advised in the premises, it is hereby
ORDERED AND ADJUDGEDBackground
On May 8, 2012, the Court Granted Defendant’s Motion for Final Summary Judgment relating to Plaintiff’s defective demand letter and Final Judgment was entered for Defendant. Plaintiff appealed, and on July 14, 2014 the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida entered its Opinion affirming the entry of Final Summary Judgment in favor of Defendant as Plaintiff’s demand failed to strictly comply with the requirements in Florida Statute 627.736(10). On August 13, 2014, the District Court of Appeal of the State of Florida for the Fourth District denied the Plaintiff’s Petition for Writ of Certiorari and further ordered that Defendant’s Motion for Appellate Attorney’s Fees was Granted conditioned on the trial court determining that Defendant was entitled to fees under Florida Statute 768.79. On December 16, 2014, the trial court heard arguments regarding whether Defendant was entitled to attorney’s fees pursuant to Florida Statue 768.79.Undisputed Facts
The facts material to Defendant’s Motion for Entitlement to Attorney Fees and Costs are undisputed and established by the pleadings and discovery on record and the material facts are set forth below.
On September 18, 2009, the Defendant filed its Answer and Affirmative Defenses alleging as the only affirmative defense that Defendant made appropriate payments under Florida Statute 627.736(5)(A)(2)(f) and 5(A)(3). On March 9, 2012, Defendant submitted an Offer of Judgment/Proposal for Settlement (PFS) pursuant to Florida Statute 768.79 and Florida Rule of Civil Procedure 1.442. During the course of litigation, Defendant amended its Answer and Affirmative Defenses on October 19, 2010, and included an affirmative defense for defective pre-suit demand letter. Defendant did not re-send any PFS after amending its answer to include the detective pre-suit demand letter defense and the affirmative defense regarding the defective pre-suit demand letter was the issue on which the Defendant ultimately prevailed.Findings of Law
The Court hereby adopts the foregoing findings of fact. The sole issue is whether Defendant is entitled to reasonable attorney’s fees and costs under Florida Statute 768.79 for Defendant’s March 9, 2010 PFS. Florida Statute 768.79 reads, “[i]n 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. . .if the judgment is one of no liability”. In Sarkis v. Allstate Insurance Company, 863 So.2d 210, 222 (Fla. 2013) [28 Fla. L. Weekly S740a] the Court held that “statutory authorization for attorney’s fees is to be strictly construed”. The Legislature, by enacting 768.79, responsible for enacting substantive law, and “the Legislature, by enacting 768.79, did not give judges the discretion to determine whether it is reasonable to reject an offer of judgment.” Id. at 221, n.12 (citing TGI Friday’s, Inc. v. Dvorak, 663 So.2d 606 (Fla. 1995) [20 Fla. L. Weekly S436a]. In TGI Friday’s, Inc. v. Dvorak, 663 So.2d 606 (Fla. 1995) the Court held that the reasonableness of a rejection of a PFS had no bearing on the issue of entitlement to fees, but may have a bearing on the amount of attorney fees awarded by the Court. In Levine v. Harris, 791 So.2d 1175 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D1824a] the Court held that a PFS is made in good faith if the offeror had a reasonable foundation upon which to make his offer and the offer was made with the intent to settle. Upon the offeree to prove that the offeror acted without good faith and whether the offeree unreasonably rejected the offer of judgment has no bearing on whether a party is entitled to attorney’s fees under Florida Statute 767.79 See Also: Sharaby v. KLV Gems Co., Inc., 45 So.3d 560 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2300a]; State of Florida Dept. of Transportation v. Bellsouth Telecommunications, Inc. 859 So.2d 1278 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D2745a]; Liggett Group, Inc., v. Davis, 975 So.2d 1281 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D786a].
The Court finds that the offer was made in good faith as Defendant evaluated their exposure as one of zero liability and had a reasonable basis in doing so.
Absent a showing by Plaintiff that Defendant’s offer was not made in good faith, the Court must award entitlement to attorney’s fee and costs pursuant to Florida Statute 768.79. Without a showing of bad faith, the Defendant’s PFS is presumed to be reasonable offer and “a sanction is levied against the rejecting party for unnecessarily continuing litigation.” Sarkis at 222. After entitlement to attorney fees is awarded, Florida Statute 768.79(7)(b) and Florida Rule of Civil Procedure 1.442(h) lists criteria for evaluating the reasonableness of an award of attorney’s fees which will be levied as a sanction.
At hearing, Plaintiff argued that a change in circumstances of a case affects the validity of a PFS. See Segundo v. Reid, 20 So.3d 933 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D1995a] and Florida Diversfied Films, Inc. v. Simon Roofing and Sheet Metal Corp., 118 So.3d 240 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D664b]. Furthermore, Plaintiff argued that the Court must find that Plaintiff unreasonably rejected the March 9, 2010 PFS in order for Plaintiff to be sanctioned with attorney’s fees. The Court finds the reasoning in Moreno v. United Automobile 21 Fla. L. Weekly Supp. 392a to be persuasive in the regard. There is no requirement in Florida Statute 768.79 that a PFS be unreasonably rejected in order to determine entitlement to fees. Rather the statute reads, “the defendant shall be entitled to recover reasonable costs and attorney’s fees. . . if the judgment is one of no liability”. Such language must be strictly construed. Reid and Simon Roofing are distinguished from this matter as both cases involved crucial new information that ultimately affected the potential damages sought in both cases. The Court finds the reasoning in Moreno v. United Automobile 21 Fla. L. Weekly Supp. 392a to be persuasive in the regard.Conclusion
IT IS HEREBY ORDERED AND ADJUDGED that the Defendant’s State Farm Mutual Automobile Insurance Company, Motion for Entitlement to Attorney’s Fees and Costs is hereby GRANTED. The Court finds that Defendant is entitled to attorney’s fees and costs pursuant to Florida Statute 768.79 and Florida Rule of Civil Procedure 1.442 with a reasonable amount to be determined at a later date and hearing. The Court retains jurisdiction for the purpose of determining the reasonable amount of attorney’s fees and costs.
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