22 Fla. L. Weekly Supp. 944a
Online Reference: FLWSUPP 2208FORMInsurance — Personal injury protection — Attorney’s fees — Time spent litigating entitlement to fees — Although insurer may have intended its actions in engaging in settlement negotiations over amount of attorney’s fees and costs to reflect a stipulation as to medical provider’s entitlement to fees and costs, where insurer failed to clearly and unequivocally communicate that intent to provider, provider is entitled to fees and costs for all time spent litigating entitlement to fees
STAND-UP MRI & DIAGNOSTIC CENTER, P.A., as assignee of Yolanda Formoso, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2014-SC-1089-O. February 16, 2015. Andrew L. Cameron, Judge.
ORDER GRANTING PLAINTIFF’S MOTION FORATTORNEY’S FEES AND COSTS
This matter having come before the Court on Plaintiff’s Motion for Attorney’s Fees and Costs, and the Court having heard arguments of counsel and being otherwise fully advised in the premises, the Court hereby finds as follows:BACKROUND FACTS
On or about January 29, 2014, Plaintiff filed suit seeking reimbursement of PIP benefits.
On March 10, 2014, prior to the scheduled Small Claims Pre-trial Conference, Robert Bartels, counsel for the Plaintiff and Jessica Capin, Defendant’s adjuster, settled the dispute regarding benefits and interest owed. Despite an offer and counter offer being exchanged at that time, they were unable to resolve the issue of attorney’s fees and costs.
On March 10, 2014, Plaintiff’s counsel sent a settlement confirmation letter (introduced as Exhibit 1 at the October 9, 2014 hearing) wherein Mr. Bartels stated in pertinent part:
“Based on the settlement of benefits and interest, I have filed a notice of settlement with the Court. Please find a copy of that pleading enclosed with this correspondence.’
“Unfortunately, we were unable to resolve the issue of attorney’s fees and costs. Further, please allow this correspondence to confirm that there has been no stipulation to entitlement to attorney’s fees and costs. . . .’
“Finally, please allow this correspondence to advise that my prior offer to resolve fees and costs has been withdrawn. . . .” (emphasis added)
Defendant, through its adjuster Jessica Capin, responded to Plaintiff’s March 10, 2014 correspondence, by her own dated March 12, 2014 (introduced as Exhibit 2, at the October 9, 2014 hearing), in which she enclosed a draft for settlement of benefits and interest and specifically invited Mr. Bartels to contact her to discuss fees and costs.
Despite several subsequent settlement offers and counter-offers to resolve the amount of fees and costs being exchanged between the parties in April and May, 2014, there was no affirmative act on the part of either party to stipulate, dispute or to confirm an agreement as to entitlement.
Plaintiff continued to litigate the issue of attorney fees and costs, which included the taking of the deposition of Jessica Capin on October 8, 2014. At her deposition (a transcript of which was provided to the Court on the hearing on this matter), Ms. Capin confirmed that she made an offer to pay an amount of attorney’s fees and costs which was declined by Plaintiff’s counsel. Despite her understanding that State Farm had stipulated to entitlement to fees by attempting to negotiate an amount, she could not identify any objective statement or document confirming that stipulation.
The parties proceeded forward with a hearing on October 9, 2014 on Plaintiff’s Motion for Attorney’s Fees and Costs and the issue of entitlement was unresolved. The parties concluded the entitlement hearing on November 11, 2014.
ISSUES AND LAW
The Florida Supreme Court, in State Farm Fire & Casualty Co. v. Palma, 629 So. 2d 830 (Fla. 1993) concluded that a party not recover attorney’s fees for time spent litigating the amount of fees to which it claims entitlement, until entitlement has been established by order or stipulation. An entitled party may recover fees for time expended litigating the issue of entitlement to fees. Id. at 833.
The issue before this Court is whether Defendant has clearly and unequivocally stipulated to Plaintiff’s entitlement to fees and costs when it made an offer to resolve the amount of attorney’s fees and costs on March 10, 2014. In the absence of a stipulation as to entitlement, Plaintiff will be entitled to an award of attorney’s fees and costs as of the date of the conclusion of the entitlement fee hearing in this matter, November 11, 2014.
Defendant asserts that its intent to concede to the Plaintiff’s entitlement can be inferred by its efforts to offer an amount of fees and costs, regardless of the fact that its offers were rejected by the Plaintiff.
Plaintiff contends that stipulation to entitlement of fees must precede negotiation as to amount, and that stipulation to entitlement must be clear and unequivocal to eliminate guess work and confusion
The record evidence before the Court is that parties attempted to resolve the attorney’s fees and costs on March 10, 2014, however, they were unsuccessful. Plaintiff’s March 10, 2014 correspondence very clearly articulated that entitlement was not stipulated to and therefore was still at issue.
Additionally, the Court was presented with evidence at the entitlement hearing that it is the standard insurance industry practice was to clearly articulate its intention to stipulate to entitlement as early in the process as possible to stop attorney’s fees from continuing to accrue.
This Court is persuaded by Plaintiff’s argument that the Defendant failed to communicate its intention to concede to the Plaintiff’s entitlement to fees and costs.
In doing so, this Court adopts the approach to entitlement articulated by County Court Judge Elizabeth G. Rice of the 13th Judicial Circuit Court in Francisco Gomez M.D., P.A. a/a/o Brandy Williams v. Progressive Express Insurance Company, 13 Fla. L. Weekly Supp. 98a:
“This Court likewise embraces a bright line rule for entitlement and rules that a party’s acquiescence or concession to a party’s entitlement to attorney’s fees must be clear and unequivocal from the record.”
See also, Physical Medical Center, a/a/o Garcia v. Progressive Insurance Co., 12 Fla. L. Weekly Supp. 1182a); and Francisco Gomez M.D., P.A. a/a/o Zoe Andrusyshyn v. Progressive Express Insurance Company, 13 Fla. L. Weekly Supp. 621a.
This bright line approach helps to eliminate senseless conflict on the issue of when a party is litigating entitlement to attorney’s fee as opposed to litigating the amount of attorney’s fees. Requiring Defendants to clearly and unequivocally concede entitlement eliminates guesswork and may help to streamline the attorney fee recovery process.
Once the Defendant’s adjuster, Ms. Capin settled the underlying claim for benefits and interest, she commenced settlement negotiations to resolve the issue of attorney’s fees and costs. While the Defendant may have genuinely intended its actions to reflect a stipulation as to Plaintiff’s entitlement to fees and costs, its failure to clearly communicate this intention left Plaintiff guessing. Rather than speculating about what Defendant might have intended to do, this Court must base its ruling on record evidence. The record before the Court does not support a clear and unequivocal stipulation to entitlement.
IT IS HEREBY ORDERED AND ADJUDGED that:
1. Plaintiff established its entitlement to fees and costs at the time of the hearing before the Court on November 11, 2014.
2. The Court reserves jurisdiction to determine the amount of attorney’s fees and costs Plaintiff is entitled to recover from the Defendant in this matter. If the parties are unable to resolve this matter, they may set it for a fee hearing.
3. The parties may agree to have their fee experts testify by affidavit in lieu of live testimony at the fee hearing. The affidavits shall be filed with the Court no later than thirty (30) days prior to the hearing.
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