22 Fla. L. Weekly Supp. 323a
Online Reference: FLWSUPP 2203HODAInsurance — Personal injury protection — Attorney’s fees — Trial court did not err in denying medical provider’s motion for attorney’s fees where, due to insured’s failure to attend independent medical examination, provider obtained judgment for no more than pre-suit settlement offer — Fact that settlement offer was for full and final payment of PIP benefits and would have precluded provider from attempting to recover bills accrued after missed IME does not render offer invalid — Fact that provider recovered more interest than was included in settlement offer does not entitle provider to award of attorney’s fees
MARSHALL BRONSTEIN, D.C., a/a/o Maria Hodate, Appellant, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 11-614 AP. L.T. Case No. 08-15929-CC. July 7, 2014. Counsel: Marlene S. Reiss, for Appellant. Michael Neimand, for Appellee.
ORDER DENYING MOTION FOR REHEARING
This matter is before the Court on Appellant’s Motion for Rehearing on Order Granting Appellee United Auto’s Motion for § 57.105 Attorney’s Fees. Having considered the motion, the record, and being otherwise fully advised in the premises, the Court hereby finds as follows:
Prior to the commencement of the personal injury proceedings in the court below, Appellant United Automobile Insurance Company (“United”) tendered a check in the amount of $1,816.00 as “full [and] final payment of PIP benefits” signifying 80% of the amount Dr. Marshall Bronstein (“Dr. Bronstein”) billed for treatment predating the insured’s failure to appear for two independent medical examinations (“IME”). Dr. Bronstein rejected the offer and filed suit. At trial, the jury found that the insured, Maria Hodate’s, failure to attend the IME’s was unreasonable and entered final judgment in the amount of $1,816.00 in PIP benefits, plus $559.87 in interest, in favor of Dr. Bronstein.
Thereafter, the trial court denied Dr. Bronstein’s motion for attorney’s fees pursuant to 627.428(1), Florida Statutes, because Dr. Bronstein failed to recover a judgment greater than the amount he was offered in settlement prior to the filing of the lawsuit. This Court later affirmed the trial court’s order on appeal and granted Appellee’s motion for appellate attorney’s fees for the reasons set forth herein.
In relevant part, section 627.428, Florida Statutes provides as follows:
(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.
§ 627.428, Fla. Stat. (emphasis supplied).
The Florida Supreme Court has held that the “ ‘prevailing insured or beneficiary’ is one who has obtained a judgment greater than any offer of settlement previously tendered by the insurer. . . . Absent that, the insured or beneficiary is entitled to no fee award.” Danis Indus. Corp. v. Ground Improvement Techniques, Inc., 645 So. 2d 420, 421 (Fla. 1994); see also Greenough v. Aetna Cas. & Sur. Co., 449 So. 2d 1001 (Fla. 4th DCA 1984) (applying this standard to pre-suit offers); Union American Ins. Co. v. Ismael Lopez, 6 Fla. L. Weekly Supp. 72a (Fla. 11th Cir. Ct. 1998) (holding that the insured was not the “prevailing party” pursuant to section 627.428 where the amount recovered after trial was the exact amount the insurer offered to settle the claim before the lawsuit was filed).
Appellant alleged, without citation, that acceptance of the “full and final” pre-suit settlement offer covering treatment up to the date of the missed IME would have improperly precluded him from attempting to recover the post-IME bills. Dr. Bronstein conceded that, had United offered “an unfettered payment of the pre-IME bills, and he had ultimately recovered nothing more from the jury, United would not be liable for his attorney’s fees.” In this respect, the logic of the appellant’s argument appears to be detrimentally flawed and lacking in any legal foundation. By definition, a settlement agreement is “an agreement ending a dispute or lawsuit.” Black’s Law Dictionary 1405 (8th ed. 2004) (emphasis supplied). It is undisputed that United sought to dispose of Dr. Bronstein’s entire claim prior to the filing of the lawsuit. By the appellant’s reasoning, unless an insurer is prepared to pay a claim and leave itself open to subsequent litigation, its pre-suit settlement offer cannot be valid. The appellant’s proposed method of settlement is contrary to established principles of law. See e.g., St. Mary’s Hosp. Inc. v. Schocoff, 725 So. 2d 454, 456 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D405a] (discussing “according and satisfaction”). Accordingly, the trial court’s order denying Dr. Bronstein’s motion for attorney’s fees was properly affirmed.
Lastly, Dr. Bronstein asserted that the pre-suit offer was for $1,816.00 in benefits, plus $32.99 in interest, whereas the final judgment was in the principal amount of $1,816.00 in benefits, plus $559.87 in interest. In so doing, the appellant alleges that the order denying his motion for attorney’s fees was erroneous where the trial court noted that he failed to recover a judgment greater than the amount United offered in settlement prior to the filing of the lawsuit. As the court noted in Danis, “any offer of settlement shall be construed to include all damages, attorney fees, taxable costs, and prejudgment interest which would be included in a final judgment if the final judgment was entered on the date of the offer of settlement.” Id. at 422. In this case, the amount offered was the same amount to which Dr. Bronstein would have been entitled, had the final judgment been entered on that date. Thus, the pre-suit offer was proper.
Appellant’s arguments on appeal presented no justiciable question and the case was completely without merit in law. Moreover, the arguments asserted cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law. See Visoly v. Sec. Pac. Credit Corp., 768 So. 2d 482 (Fla. 3d DCA 2000) [25 Fla. L. Weekly D2003a]. Accordingly, the Court’s order granting United’s motion for appellate attorney’s fees was properly granted because the appeal was frivolous.
WHEREFORE, it is ORDERED and ADJUDGED that
Appellant’s Motion for Rehearing on Order Granting Appellee United Auto’s Motion for 57.105 Attorney’s Fees is hereby DENIED. (ECHARTE, Jr., BUTCHKO, and MENDEZ, JJ.)
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