24 Fla. L. Weekly Supp. 371a

Online Reference: FLWSUPP 2405RAMIInsurance — Personal injury protection — Offer of judgment — Although offer of judgment statute does not apply in actions seeking both damages and equitable relief, it may be used in PIP case containing counts for breach of contract and for declaratory relief where true relief sought by both counts is monetary since answers sought in declaratory relief count will be dispositive of breach of contract claim — Motion to strike offer of judgment is denied — Motion for enlargement of time to respond to offer is denied where medical provider filed timely motion but did not schedule hearing on motion until after expiration of time to respond — Filing of motion did not toll 30-day deadline for acceptance of offer

A-FIRST CHOICE HEALTHCARE SYSTEMS, INC. a/a/o Samantha Ramirez, Plaintiff, vs. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE15-024717 (49). June 20, 2016. Nina W. Di Pietro, Judge. Counsel: Howard Moynes, Law Offices of Anidjar & Levine, Fort Lauderdale, for Plaintiff. Michael P. Hughes, Progressive PIP House Counsel, miami, for Defendant.ORDER DENYING PLAINTIFF’S MOTION TOSTRIKE DEFENDANT’S OFFER OF JUDGMENT ANDORDER DENYING PLAINTIFF’S MOTION TO ENLARGETIME TO RESPOND TO DEFENDANT’S PROPOSAL FORSETTLEMENT SERVED APRIL 6, 2016.

THIS CAUSE having come on to be heard on June 7, 2016 regarding Plaintiff’s Motion to Strike Defendant’s Offer of Judgment and Plaintiff’s Motion to Enlarge Time to Respond to Defendant’s Proposal for Settlement Served April 6, 2016, the Court having heard argument of both Plaintiff and Defendant, and being otherwise advised in the Premises, the Court finds the following:

This is a Personal Injury Protection (hereinafter “PIP”) case in which Plaintiff filed a two count Amended Complaint on February 9, 2016. Count I of the Plaintiff’s Amended Complaint is a request for Declaratory Relief and Count II is a Breach of Contract claim. On April 6, 2016, Defendant filed its Notice of Service of Proposal for Settlement, stating that on that date, Defendant served Plaintiff with a Proposal for Settlement pursuant to Florida Statute §768.79 and Florida Rules of Civil Procedure 1.442. That very same day, Plaintiff filed the following motions: 1. Plaintiff’s Motion to Strike Defendant’s Offer of Judgment; and 2. Plaintiff’s Motion to Enlarge Time to Respond to Defendant’s Proposal for Settlement Served April 6, 2016.

Florida Statute §768.79, titled Offer of Judgment and Demand for Judgment, provides a statutory basis for parties to recover costs and attorney’s fees in civil actions for damages. The statute states in pertinent part:

In any civil action for damages filed in the courts of this state, if a defendant files and offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award.

F.S. §768.79(1) (2011). Fla. R. Civ. P. rule 1.442 governs the procedures by which proposals for settlement are made and accepted or rejected. The rule states in relevant part, “A proposal shall be deemed rejected unless accepted by delivery of a written notice of acceptance within 30 days after service of the proposal.” Fla. R. Civ. P. rule 1.442(f)(1).

The legal matters at issue in the instant motions filed by Plaintiff are the following: 1. Is the Proposal for Settlement invalid as the offer, if accepted, would presumably¹ resolve both counts of the Amended Complaint, one of which is an equitable claim; 2. If the Proposal for Settlement is not invalid, does the Court have the ability to grant an enlargement of time for Plaintiff to respond to Defendant’s Proposal for Settlement; and 3. If the Court has the ability to grant an extension, did the filing of Plaintiff’s Motion for Enlargement of Time toll the 30 day deadline for acceptance?Plaintiff’s Motion to Strike Defendant’s Offer of Judgment

In 2013, the Supreme Court of Florida held in Diamond Aircraft Industries, Inc. v. Horowitch, that, “[S]ection 768.79 does not apply to an action in which a plaintiff seeks both damages and equitable relief, and in which the defendant has served a general offer of judgment that seeks release of all claims.” 107 So.3d 362, 374 (Fla. 2013)[38 Fla. L. Weekly S17a]. However, Diamond Aircraft suggests that F.S. §768.79 may be utilized in a suit seeking monetary and nonmonetary relief if the “true relief” sought is monetary. Id. at 373; MYD Marine Distributor, Inc. v. International Paint Ltd., 187 So.3d 1285 (Fla. 4th DCA 2016) [41 Fla. L. Weekly D911b]. A court should look behind the procedural vehicle used in a complaint to discern what true relief is sought. MYD Marine Distributor at 1287 [citing Yacht Club on the Intracoastal Condo. Ass’n, Inc. v. Lexington Ins. Co., 559 Fed.Appx. 875, 883 (11th Cir. 2015) (applying Florida law)].

Here, Plaintiff is claiming that Defendant underpaid PIP benefits by $346.66 and therefore breached its contract of insurance. The two questions Plaintiff asks the Court to answer in its request for declaratory relief (Count I of the Amended Complaint) are the following: 1. Does the Defendant’s insurance policy clearly and unambiguously notify its insureds of its election of a single method of calculating PIP benefits; and 2. Does the Defendant’s insurance policy unlawfully elect to rely on MPPR in violation of Section 627.736(5)(a)(3)? The answers to these questions are dispositive of Plaintiff’s breach of contract claim. While the request for declaratory relief is, on its face, an equitable claim, the true relief the claim seeks is monetary because an affirmative answer to either of the questions has no independent value separate and apart from serving as a precursor for Plaintiff to establish that Defendant breached its contract. Therefore, the Court finds that given this scenario, Defendant was permitted to send Plaintiff a Proposal for Settlement pursuant to F.S. §768.79. Diamond Aircraft at 373; and MYD Marine Distributor at 1287.

ORDERED AND ADJUDGED that Plaintiff’s Motion to Strike Defendant’s Offer of Judgment be, and the same is hereby, Denied.Plaintiff’s Motion for Enlargementof Time to Respond to Defendant’sProposal for Settlement Served March 31, 2016

Plaintiff, in the alternative requests that this Court grant an enlargement of time to respond to Defendant’s Proposal for Settlement until after Plaintiff takes the deposition of Defendant’s PIP Litigation Adjuster.

Although the language of F.S. §768.79 sets a firm 30 day deadline for a plaintiff to accept a defendant’s offer of judgment, the Fourth District Court of Appeals clarified in Schmidt v. Fortner, 629 So.2d 1036 (Fla. 4th DCA 1993) that because the time for responding to an offer of judgment under section 768.79 is governed by Fla. R. Civ. P. rule 1.442, a party is permitted to apply for an enlargement of the statutory deadline pursuant to Fla. R. Civ. P. rule 1.090(b). Therefore, Plaintiff was permitted by law to file its Motion for Enlargement of Time, and did so timely on April 6, 2016, as it was filed on a date well before the expiration of the 30 day time period for acceptance expired. However, despite Plaintiff’s timely filing, Plaintiff did not file a Notice of Hearing for the matter until May 27, 2016, and the hearing on the motion did not occur until June 7, 2016.

Appellate courts are split as to whether the filing of a motion under rule 1.090(b) to enlarge the time to accept a proposal for settlement automatically tolls the 30 day period for accepting that proposal until the motion to enlarge is decided. See Goldy v. Corbett Cranes Services, 692 So.2d 225 (Fla. 5th DCA 1997) [22 Fla. L. Weekly D927e] (holding that a motion to enlarge the period within which to respond to an offer of judgment effectively tolls the responsive period provided that the motion is filed before the period has otherwise expired); Donohoe and TBM v. Starmed Staffing, Inc., 743 So.2d 623 (Fla. 2d DCA 1999) [24 Fla. L. Weekly D1282b] (holding that plaintiff’s motion to enlarge time to respond to offer did not toll time in which to respond); Three Lions Construction, Inc. v. Namm Group, Inc., 183 So.3d 1119 (Fla. 3d DCA 2015) [40 Fla. L. Weekly D1703a] (holding that a motion for extension of time to accept a proposal for settlement was ineffective to toll the time for acceptance where the party serving the proposal for settlement did not agree to an extension and the moving party did not obtain a hearing on the motion prior to the expiration of the time for acceptance of the proposal); Ochoa v. Koppel, 2016WL2941099 (Fla. 2d DCA 2016) [41 Fla. L. Weekly D1196b] (certifying conflict with Goldy and holding that the filing of a motion to enlarge time to respond to a proposal for settlement does not automatically toll that time pending a decision on the motion).

As Judge Jaqueline R. Griffin’s astutely stated in her concurring in part and dissenting in part opinion in Goldy:

. . . The deadline must be extended before the expiration occurs. If it were otherwise, any offer of judgment could be stymied in this way. Any time, including the day before the offer is due to expire, the motion to extend the deadline is simply filed. The deadline thus does not ever arrive and the offeror does not get the benefit of the rule, nor can he withdraw the offer without losing the benefit of the rule. If the filing of the motion to extend prevents expiration, the offeree will likely always file one since there is no downside to doing so. If the motion is ever called up for hearing, the worst that can happen is the motion is denied and all that extra time will have been bought during which the offer (which cannot be “withdrawn” without losing the right to fees) can be accepted at leisure.

Goldy at 228-229. The Court agrees with Judge Griffin’s analysis in Goldy, as well as the statutory construction analysis discussed in depth in Ochoa, and finds that the filing of Plaintiff’s Motion to Enlarge Time to Respond to Defendant’s Proposal for Settlement Served April 6, 2016 did not toll the 30 day deadline. Therefore, the Court finds that the acceptance period for Defendant’s Proposal for Settlement, and in turn the last day for Plaintiff’s motion to be heard, expired on May 6, 2016, about month prior to the hearing on Plaintiff’s motion.

ORDERED AND ADJUDGED that Plaintiff’s Motion to Enlarge Time to Respond to Defendant’s Proposal for Settlement Served April 6, 2016 be, and the same is hereby, Denied as moot.

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¹Pursuant to F.S. §768.79(3) and Fla. R. Civ. P. 1.442(d), Defendant did not file a copy of the Proposal for Settlement.