23 Fla. L. Weekly Supp. 173b
Online Reference: FLWSUPP 2302ROJOInsurance — Declaratory action — Offer of judgment — Action seeking declaration of whether material misrepresentation existed in insured’s application for automobile insurance is not claim for damages to which offer of judgment statute applies — Offer of judgment is stricken
JAVIER ROJO, Petitioner, vs. WINDHAVEN INSURANCE COMPANY, Respondent. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 14-18308 CC 05 (06). July 2, 2015. Charles Johnson, Judge. Counsel: Howard W. Myones, Law Offices of Anidjar & Levine, P.A., Fort Lauderdale, Plaintiff. George Reynolds, Miami, for Defendant.
ORDER ON PLAINTIFF’S MOTION TO STRIKEDEFENDANT’S OFFER OF JUDGMENT
THIS CAUSE, having come before the Court on Plaintiff’s Motion to Strike Defendant’s Offer of Judgment, and the court having heard argument of counsel, and being otherwise fully advised in the premises, it is hereupon
ORDERED AND ADJUDGED that Plaintiff’s Motion to Strike Defendant’s Offer of Judgment is GRANTED.
On September 7, 2014, the Plaintiff, Javier Rojo, filed a Petition for Declaratory Relief to request judicial determination of whether a material misrepresentation existed on his application for automobile insurance. On April 13, 2015, the Defendant served an Offer of Judgment to the Plaintiff pursuant to Fla. Stat. §768.79 or Fla. R. Civ. P., Rule 1.442. Plaintiff filed its Motion to Strike alleging that this is an action for declaratory relief, not an action for damages. Defendant alleges that the despite the procedural vehicle taken by the Plaintiff, this is actually an action for damages.
“The offer of judgment statute applies only to civil actions for ‘damages.” Palm Beach Polo Holdings, Inc. v. Equestrian Club Estates Property Owners Ass’n, Inc., 22 So.3d 140, 143 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D2394a]. When determining whether a case is an action for damages, courts look behind the procedural vehicle used to bring the lawsuit and focus on whether the real issue in the case is one for damages. National Indem. Co. of the South v. Consolidated Ins. Services, 778 So.2d 404, 408 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D291a]; Nelson v. Marine Group of Palm Beach, Inc., 677 So.2d 998, 999 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1849a].
In the instant case, this is not a claim for damages, but a petition for a court determination on material misrepresentation. As such, the Plaintiff’s Motion is Granted and the Defendant’s Offer of Judgment is stricken.
