23 Fla. L. Weekly Supp. 964a
Online Reference: FLWSUPP 2309ADVAInsurance — Personal injury protection — Attorney’s fees — Proposal for settlement — Nominal offer of settlement was made in good faith where insurer’s defense was that medical provider had sued wrong party
ADVANCED 3-D DIAGNOSTIC INC., Plaintiff, vs. USAA CASUALTY INSURANCE COMPANY, et al, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE-15-003371, Division 55. January 29, 2016. Daniel J. Kanner, Judge. Counsel: Kelly M. Arias, Arias Law Group P.A., Hollywood, for Plaintiff. Scott W. Dutton, Dutton Law Group, P.A., Tampa, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION FORENTITLEMENT TO ATTORNEY’S FEES AND COSTS
This cause came before the Court on January 13, 2015, for hearing of the Defendant’s Motion to Tax Attorney’s Fees and Costs [Entitlement Only], and the Court’s having considered the Motion and the entire Court file; received evidence; heard argument; considered the relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background.
1. On May 26, 2015, the Defendant State Farm served Plaintiff with its Proposal for Settlement pursuant to Rule 1.442, Fla. R. Civ. P., and Fla. Stat. §768.79.
2. The Plaintiff did not accept the Proposal for Settlement.
3. On October 20, 2015, the Court granted the Defendant’s Motion for Final summary Judgment.
4. Because USAA Casualty Insurance Company was the prevailing party, and because it had an expired Proposal for Settlement, the Defendant timely served its Motion to Tax Attorney’s Fees and Costs on October 27, 2015.
5. At the hearing, the Plaintiff advised the Court that it is disputing Defendant’s entitlement to attorney’s fees and costs, claiming that USAA’s proposal for settlement was not made in good faith.
6. USAA’s proposal for settlement was in the amount of $1.00, inclusive of attorney’s fees.
7. There is no dispute that Plaintiff received the proposal for settlement and failed to accept it within thirty (30) days of receipt. Under Florida law, absent a finding that a party’s offer of judgment was not made in good faith, the offeror is entitled to its attorney’s fees. The issue of good faith is determined solely by the subjective motivations and beliefs of the offeror at the time the offer was made, not the reactions of the opposing party. Wagner v. Brandeberry, 761 So.2d 443, 446 (Fla. 2d DCA 2000) [25 Fla. L. Weekly D1344b]. Florida courts have held that the “obligation of good faith [found in section 768.69] merely insists that the offeror have some reasonable foundation on which to base an offer.” Weesner v. United Services Auto. Ass’n, 711 So.2d 1192, 1194 (Fla. 5th DCA 1998) [23 Fla. L. Weekly D1049a], quoting Schmidt v. Fortner, 629 So.2d 1036, 1039 (Fla. 4th DCA 1993).
8. Without dispute, USAA’s offer in this case was for a nominal amount. However, Florida courts have upheld nominal proposals for settlement, as long as made in good faith. See, e.g., State Farm Mutual Auto. Ins. Co. v. Marko, 695 So.2d 874, 876 (Fla. 2d DCA 1997) [22 Fla. L. Weekly D1505c] (holding offer of judgment for $1.00 to be in good faith when secondary insurer believed liability would not exceed primary policy limits).
9. The critical issue in the instant case is therefore whether USAA made its nominal offer in good faith. In determining whether an offer was made in good faith, a court must consider whether the offer bears a reasonable relationship to the amount of damages suffered and arose out of a realistic assessment of liability. Eagleman v. Eagleman, 673 So.2d 946, 948 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1192a]. If the offeror makes no assessment of liability, but rather simply engages in a pattern of making nominal offers in all its cases in the hope that its position in a single case will be successful, it is not making an offer in good faith. The Plaintiff argues that that is what USAA has done in the instant case.
10. Moreover, the Court notes that the offer of $1.00 is not the only amount in play in the Court’s analysis. Here, the Defendant ran the risk that the Plaintiff would accept the offer and eliminate the Defendant’s right to recover its costs in the case, because although the PIP statute does not permit an insurer to recover fees in the absence of a successful proposal for settlement, an insurer is always entitled to recover its costs if it prevails. These costs can sometimes be significant in the context of a PIP case.
11. Although USAA’s offer was nominal, its defense was that the Plaintiff had sued the wrong party and that it had no liability. Additionally, USAA put the Plaintiff on notice early in the case that they were suing the wrong party and the Plaintiff chose not to amend their Complaint to reflect the proper party. The Court ultimately agreed that the wrong party had been sued and the Motion for Final Summary Judgment was granted.
12. As a result, the Defendant’s Motion to Tax Attorney Fees and Costs is GRANTED.
13. If an agreement as to amount is not reached by the parties, the Defendant may request that its Motion as to amount be set for evidentiary hearing upon delivering to opposing counsel and the Court, by way of Notice of Filing, a detailed breakdown of fees sought in the form of date, provider, description of work, time spent per entry, total time spent on case, hourly rate sought and total amount of fees sought. A hearing will not be set until this Notice of Filing is provided.
14. All other post-judgment discovery pertaining to either party’s fees and costs is hereby STAYED pending further order of the Court upon properly submitted motion.
