23 Fla. L. Weekly Supp. 911b
Online Reference: FLWSUPP 2309DORInsurance — Personal injury protection — No abuse of discretion in denying medical provider’s motion for new trial based on arguments that insurance fraud defense permeated trial, insurer was allowed to use witness depositions from another case to which provider was not party, and insurer made improper closing argument where totality of errors and improprieties was not sufficiently pervasive to raise doubts as to overall fairness of proceedings — No error in entering directed verdict in provider’s favor on fraud claim where insurer did not present sufficient evidence that insured knowingly submitted false or misleading statements with intent to injure, defraud or deceive insurer — No abuse of discretion in denying insurer’s motion for attorney’s fees and costs where trial court’s determination that insurer did not have reasonable foundation for its proposal of settlement and did not make offer with intent to settle is not one that no reasonable judge could make
WIDE OPEN MRI, A/A/O CHARLES DOR, Appellant, v. NATIONAL SPECIALTY INSURANCE COMPANY, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE11-004505 (AP). L.T. Case No. COCE06-010556. NATIONAL SPECIALTY INSURANCE COMPANY, Appellant, v. WIDE OPEN MRI, A/A/O CHARLES DOR, Appellee. Case No. CACE11-004733 (AP). L.T. Case No. COCE06-010556. February 11, 2016. Appeal from the County Court for the Seventeenth Judicial Circuit, Broward County, Fred J. Berman, Judge. Counsel: Marlene S. Reiss, Marlene S. Reiss, P.A., Miami, for Wide Open MRI. Jose P. Font, Vernis & Bowling of Broward, P.A., Hollywood, for National Specialty Insurance Company.
[County court order denying motion for attorney’s fees published at 18 Fla. L. Weekly Supp. 682a]
OPINION
(PER CURIAM.) In this consolidated appeal, Wide Open MRI (“Wide Open”) appeals a final judgment in favor of National Specialty Insurance Company (“National”). National cross appeals the final judgment, and also appeals an order denying motion for entitlement to attorney’s fees and costs. Having carefully reviewed the briefs, the record and the applicable law, this Court dispenses with oral argument, and finds that both the final judgment in favor of National and the order denying motion for entitlement to attorney’s fees and costs should be affirmed as set forth below.
The county court did not abuse it’s discretion in the denial of Wide Open’s motion for new trial. The gist of Wide Open’s appeal is that the county court abused its discretion in denying its motion to for new trial where (1) National’s affirmative defense of insurance fraud permeated the proceedings, (2) the county court allowed National to use witness depositions taken in a separate case in which Wide Open was not a party, and (3) National’s counsel repeatedly made improper statements in his closing argument. Wide Open MRI asserts that all of the above resulted in undue prejudice to Wide Open. Wide Open invited almost all of the alleged incidents of error that Wide Open now complains about. See, e.g., Hernandez v. Gonzalez, 124 So. 3d 988, 993 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D2257a] (affirming denial of motion for new trial partly because, under the rule of invited error, a party may not make or invite error at trial and then take advantage of the error on appeal). Notwithstanding, upon review of the entire record on appeal, the totality of such alleged errors and improprieties are not pervasive enough to raise doubts as to the overall fairness of the court proceedings. See Whitney v. Milien, 125 So. 3d 817, 819 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D646a]. Under the circumstances presented in this case, it cannot be said that no reasonable man would agree with the trial court that the incidents that Wide Open complains about did not undermine the trial. See Id. (citations omitted).
The county court did not err in granting Wide Open’s motion for directed verdict. On cross appeal, National argues that the county court based its ruling on National’s failure to satisfy the common law elements of fraud as opposed to the elements of fraud as defined by the insurance policy, the PIP statute and the insurance fraud statute. The record does not demonstrate that the county court based its ruling on National’s failure to establish the common law elements of fraud. Rather, the county court based its ruling on National’s failure to establish its affirmative defense. National did not present sufficient evidence that the assignor knowingly submitted false or misleading statements relating to the claim or charges with the intent to injure, defraud or deceive National. Viewing the evidence and all inferences of fact in a light most favorable to National, no proper view of the evidence could sustain a verdict as to the affirmative defense of insurance fraud in favor of National. Compare Quayside Associates, Ltd. v. Triefler, 506 So. 2d 6, 7 (Fla. 3d DCA 1987) (holding that a directed verdict on the fraud claim was correct because there was no evidence of fraud) and Barth v. Khubani, 705 So. 2d 72, 73 (Fla. 3d DCA 1997) [23 Fla. L. Weekly D63d] (finding that the trial court erred by granting a directed verdict on the plaintiff’s count for fraud where there was testimony to support the elements of the claim).
The county court did not abuse its discretion in denying National’s motion for entitlement to attorney’s fees and costs. National argues that the county court abused its discretion when it determined that National’s proposal of settlement was served in bad faith. Once entitlement is established under the offer of judgment statute, a trial court may, in its discretion, disallow an award of fees and costs, if it determines that the proposal was not made in good faith. See Fla. R. Civ. P. 1.442; § 768.79(1), Fla. Stat. (2011). Determining good faith turns entirely on whether the offeror had a reasonable foundation upon which to make the offer and made it with the intent to settle the claim if the offer had been accepted. Hall v. Lexington Ins. Co., 895 So. 2d 1161, 1166 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D466a]. The county court’s order denying National’s motion for entitlement to attorney’s fees and costs clearly sets forth the background of the underlying case as well as the county court’s conclusions of law. Given that the underlying case was in litigation at least two years before National’s proposal and remained in litigation for another two years, not inclusive of appellate proceedings, the county court’s determination that National did not have a reasonable foundation upon which to make the offer and did not make it with an intent to settle is not one that no reasonable judge could make. See Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980) (A court abuses its discretion when no reasonable judge would take the view adopted by such court).
Accordingly, the final judgment in favor of National is hereby AFFIRMED. The order denying motion for entitlement to attorney’s fees and costs is hereby AFFIRMED. Wide Open’s Motion for Appellate Attorney’s Fees is hereby DENIED. (PHILLIPS, GATES and IMPERATO, JJ., concur.)
