23 Fla. L. Weekly Supp. 365a

Online Reference: FLWSUPP 2304PALAInsurance — Personal injury protection — Attorney’s fees — Proposal for settlement — Service — Motion to strike proposal for settlement served by email due to failure to comply with rule 2.516(E)(i) requirement that email contain subject line beginning with words “SERVICE OF COURT DOCUMENT” is denied where proposal is not within class of documents required to be served in accordance with rule 2.516, and service email confirmation contained required words and other information identifying case and parties — Nominal proposal was made in good faith where at time proposal was made insurer had reasonable basis to conclude that exposure was nominal because it had paid benefits in accordance with statutory fee schedule clearly and unambiguously elected in policy

MED MANAGE GROUP INC. a/a/o Mario Palacios, Plaintiff, vs. ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2011-25792SP23. September 2, 2015. Spencer Multack, Judge. Counsel: Todd Landau, Landau & Associates, P.A., Hallandale Beach, for Plaintiff. Gladys Perez, Shutts & Bowen, LLP, Miami, for Defendant.

ORDER GRANTING ALLSTATE’SMOTION FOR ENTITLEMENT TOATTORNEY’S FEES AND TO TAX COSTS

This matter came before the Court upon Allstate Property & Casualty Insurance Company’s Motion for Entitlement to Attorney’s Fees and to Tax Costs. The Court, having heard argument of the Parties on July 29, 2015, and being otherwise duly advised in the matter, finds as follows:

I. Service of the Proposal for Settlement pursuant to Florida Rule of Judicial Administration 2.516(E)(i).

As its first issue, the Plaintiff avers that the Court should strike the Proposal for Settlement because the service email filed by Allstate did not contain the words “SERVICE OF COURT DOCUMENT” in all capital letters, followed by the case number in which the documents are being served, pursuant to Florida Rule of Judicial Administration 2.516(E)(i). Plaintiff relies upon a Broward County Court Order, Pembroke Pines MRI, Inc. (Ferney Calderon) v. State Farm Mut. Auto. Ins. Co., Case No. 12-21925 (Jan. 23, 2014), and Matte v. Caplan, 140 So. 3d 686 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D1237a].

The Court finds that while it is well-settled that statutes that authorize the award of attorney’s fees are in derogation of common law and must be strictly construed, a strict construction of Florida Rule of Judicial Administration 2.516 reveals that a proposal for settlement under section 768.78, Florida Statutes (2015) and Florida Rule of Civil Procedure 1.442 is not the class of documents that are required to be served in accordance with Florida Rule of Judicial Administration 2.516.

Second, the service e-mail confirmation in the instant matter provides in the subject line, SERVICE OF COURT DOCUMENT — Med Manage Group, Inc. (Mario Palacios) — Proposal for Settlement. The service e-mail further contains the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of the document served, the sender’s name, and the sender’s telephone number. Thus, service of the Proposal for Settlement was properly made upon the Plaintiff, pursuant to Rule of Judicial Administration 2.516.

The Court finds Allstate’s proposal for settlement satisfies all of the requirements of Florida Rule of Civil Procedure 1.442. The Pembroke Pines MRI case is distinguishable as in that case service was not effective because The Proposal for Settlement contained an incorrect address for Plaintiff’s counsel, and the Defendant did not serve the proposal by e-mail upon the Plaintiff. That court concluded that the Proposal had not been “served” as required by Florida Rule of Civil Procedure Rule 1.442. That is not the issue in the case sub judice. Likewise, Matte is distinguishable as it did not address the Proposal for Settlement statute, the email in that case did not provide a PDF of the motion or a link to the motion on a website maintained by the clerk, and the email did not contain the case number, name of the initial party of each side, title of the document served with that e-mail, and the sender’s name and telephone number. In Matte, there was virtually no compliance with Florida Rule of Judicial Administration 2.516 and the offeror’s argument that offeree had actual notice was insufficient.

Counsel’s related argument regarding the lack of certificate of service in the service email is without merit. The Proposal for Settlement herein contains a certificate of service in compliance with Florida Rule of Civil Procedure 1.442(c)(2)(G) and Florida Rule of Judicial Administration 2.516(f).

Based upon the above reasoning, the Plaintiff’s Motion to Strike Allstate’s Motion for Entitlement to Attorney’s Fees is DENIED.

II. Nominal Exposure

The Plaintiff further argued that Allstate’s Proposal for Settlement was “nominal” and not made in good faith. The Court notes the proper standard to be applied is whether the record demonstrates conclusively that, at the time the offer was made, the defendant had a reasonable basis to conclude that exposure was nominal. See State Farm Fla. Ins. Co. v. Laughlin-Alfonso, 118 So. 3d 314, 315 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D1654a]; Citizens Prop. Ins. Corp. v. Perez, 164 So. 3d 1 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D731a].

The Court record reflects that an offer of $125.00 was tendered to the Plaintiff on October 15, 2013. This case presented a pure issue of law, i.e., whether Allstate’s Policy language adequately notified its insureds of its election to apply the statutory fee schedules. The binding authority on the issue at the time the offer was made, which Allstate relied on, was Geico Gen. Ins. Co. v. Virtural Imaging Services, 141 So.3d 147 (Fla. 2013) [38 Fla. L. Weekly S517a].¹ In Virtual the Florida Supreme Court ruled that the insurer was required to give notice to its insured by electing the permissive Medicare fee schedules in its policy before taking advantage of the Medicare fee schedule methodology to limit reimbursements. In addition to setting forth the legal standard, the Supreme Court also stated that Geico’s amended policy language complied with the newly announced standard, which states:

Because the GEICO policy has since been amended to include an election of the Medicare fee schedules as the method of calculating reimbursements, and the Legislature has now specifically incorporated a notice requirement into the PIP statute, effective July 1, 2012, see § 627.736(5)(a)5., Fla. Stat. (2012), our holding applies only to policies that were in effect from the effective date of the 2008 amendments to the PIP statute that first provided for the Medicare fee schedule methodology, which was January 1, 2008, through the effective date of the 2012 amendment, which was July 1, 2012.

Geico’s amended policy, which the Supreme Court approved stated:

The Company will pay in accordance with the Florida Motor Vehicle No Fault Law (as enacted, amended, or newly enacted), and where applicable in accordance with all fee schedules contained in the Florida Motor Vehicle No Fault Law, to or for the benefit of the injured person:

(a) 80% of medical expenses

Similarly, the relevant portion of Allstate’s policy provides:

In accordance with the Florida Motor Vehicle No-Fault Law, Allstate will pay to or on behalf of the injured person the following benefits. . .

1. Medical Expenses.

Eighty Percent of reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services. . . .

Any amount payable under this coverage shall be subject to any and all limitations authorized by Fla. Stat. 627.736, or any other provisions of the Florida Motor Vehicle No-Fault Law, as enacted, amended or otherwise continued in the law including, but not limited to, all fee schedules.

Although not binding authority, Allstate also had the benefit of County Court Judge Lourdes Simon’s opinion in 1st Open MRI, LLC a/a/o Tomas Giz v. Allstate Fire and Casualty Insurance Company, 2012-16952SP23 (Miami-Dade County Sept. 30, 2013), which found that Allstate’s policy language affirmatively informed its insureds that PIP benefits under that policy would be limited as authorized by the Florida No-Fault statute, including all fee schedules.

The Court finds that Allstate’s policy places the insured on sufficient notice, as it has the same written effect as the approved language in the Geico policy. The Court further finds the similarity of language in Geico’s policy to Allstate’s policy, and the existing authority in Virtual, would give Allstate a reasonable basis to conclude its exposure was nominal in accordance with the existing law.

Allstate’s Motion, therefore, is GRANTED. Allstate Property & Casualty Insurance Company is entitled to recover reasonable attorney’s fees and costs, pursuant to the Proposal for Settlement.

The Court reserves jurisdiction to determine the amount of reasonable fees and costs.

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¹Although the Defendant cites numerous cases approving the policy language, that authority was published subsequent to the offer for settlement in this case. Thus, the Court is relying on the existing authority from the time the offer was tendered.