24 Fla. L. Weekly Supp. 639a
Online Reference: FLWSUPP 2408PEREInsurance — Personal injury protection — Attorney’s fees — Proposal for settlement — Where insurer made good faith nominal proposal for settlement, amendment of affirmative defenses during pendency of proposal to add defense on which insurer ultimately prevailed did not moot proposal
DORAL MEDICAL REHAB CENTER, INC., a/a/o Fernando Perez, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 2014-11988-CC-05 02. September 1, 2016. Teretha Lundy Thomas, Judge. Counsel: Michael Perez, Law Offices of Gonzalez & Associates, for Plaintiff. Erick Martin & Michael P. Hughes, Progressive PIP House Counsel, Miami, for Defendant.
ORDER AWARDING ENTITLEMENT TO ATTORNEY’SFEES AND COSTS PURSUANT TO FLA. STAT.§768.79 AND FLA. R. CIV. P 1.442
THIS MATTER coming on before the Court upon the above Proposed Order Granting Entitlement to Attorney’s Fees and Costs Pursuant to Fla. Stat. §768.79 and Fla. R. Civ. P. 1.442, and Denying Entitlement to Attorney’s Fees and Costs Pursuant to Fla. Stat. §57.105 in favor of the Defendant, it is, hereupon,
1. Plaintiff filed a lawsuit for personal injury protection benefits.
2. On 11/10/15 this Honorable Court heard argument and entered an Order Granting Defendant’s Motion for Final Summary Judgment [23 Fla. L. Weekly Supp. 570a].
3. On 11/30/15 this Honorable Court entered an Order Denying Plaintiff’s Motion for Rehearing.
4. On 12/14/15 this Honorable Court entered an Order Denying Plaintiff’s second Motion for Rehearing.
5. This Honorable Court entered Final Judgment for Defendant, reserving jurisdiction to determine entitlement to and reasonable amount of attorney’s fees and costs to be awarded to the Defendant (on 1/13/16).
6. Defendant filed a timely motion to tax attorney’s fees and costs on 1/14/16 in addition to its previously filed Motion for Sanctions pursuant to Fla. Stat. §57.105.
7. Plaintiff filed a Notice of Appeal directed at the Order Granting Defendant’s Motion for Final Summary Judgment, Order denying Plaintiff’s Motion for Rehearing, Order denying Plaintiff’s Second Motion for Rehearing, and the Order entering Final Judgment, entitled Final Summary Judgment Order. The Notice of Appeal was filed 1/22/16.
8. On 6/23/16 this Honorable Court denied Plaintiff’s Motion to stay the case (including a stay of entitlement to attorney’s fees and costs).
9. On 6/28/16 this Honorable Court held a hearing on the matter of entitlement to attorney’s fees and costs under Fla. Stat. §768.79, Fla. R. Civ. P. 1.442, and Fla. Stat. §57.105.
10. Plaintiff argued that Defendant should be precluded from taxation of attorney’s fees and costs due to the fact that Defendant served the underlying offer of judgment/proposal for settlement prior to amending its original affirmative defenses to include the affirmative defense upon which it ultimately prevailed in the instant case. Plaintiff argued that due to the nominal ($100; one hundred dollars) amount and the fact that the Defendant added to the original affirmative defense, this proposal was in bad faith and no entitlement should be allowed.
11. Defendant presented this Court with case law indicating that entitlement to attorney’s fees and costs to a qualifying offeror is mandatory under statute and rule governing offers of judgment if the statutory prerequisites have been met. Additionally, Defendant argued that the sole basis on which a court can disallow entitlement to an award of fees is if it determines that a qualifying offer was not made in good faith, which is Plaintiff’s burden to prove. See Key West Seaside, LLC v. Certified Lower Keys Plumbing, Inc., 2015 WL5132383 (Fla. 3rd DCA) [40 Fla. L. Weekly D2052b].
12. Defendant also presented the Court with Wagner v. Brandeberry, 761 So. 2d 443 (Fla. 2DCA 2000) [25 Fla. L. Weekly D1344b] indicating that the issue of good faith (as it pertains to an offer of judgment/proposal for settlement) is determined solely by the subjective motivations and beliefs of the offeror, not by the reactions of the offeree. See Wagner v. Brandeberry, 761 So. 2d 443 (Fla. 2DCA 2000) [25 Fla. L. Weekly D1344b]. Additionally, nominal offers (even for an amount of $1) which are based upon an evaluation of the case and a belief that the opposing party’s recovery would not exceed that amount, have been held to constitute a good faith offer supporting entitlement to an award of attorney’s fees and costs to the party whose offer was rejected. See State Farm Mutual Automobile Ins. Co. v. Marko, 695 So. 2d 874, 875 (Fla. 2nd DCA 1997) [22 Fla. L. Weekly D1505c].
13. Defendant made clear that although it had added an additional affirmative defense after the time of serving its proposal for settlement, it’s nominal offer was made in good faith as Defendant had a good faith, subjective belief that no additional monies were due and owing. Additionally, Defendant pointed to the recently released opinion of Manuel Diaz Farms, Inc. v. William J. Delgado, No. 3D15-86, Lower Tribunal No. 12-5914 (Fla. 3rd DCA 2016) [41 Fla. L. Weekly D1143a]. In this case, the Third District Court of Appeals indicated that MDF’s amendment to add affirmative defenses during the pendency of the proposal did not moot out the clear, timely, good faith, and straightforward proposal for settlement. The Appellate Court reversed the trial courts Order and remanded for an award of reasonable attorney’s fees to MDF.
14. This Court agrees that the underlying proposal for settlement was made in good faith, finds that it is the Plaintiff’s burden to show evidence of bad faith, which it failed to do, and in accord with the rationale set forth by Defendant and the evidence and argument set forth at hearing, it is hereby:
ORDERED AND ADJUDGED that Defendant’s Motion for Entitlement to Attorney’s Fees and Costs is hereby GRANTED as to Entitlement pursuant to its previously served proposal for settlement served pursuant to Fla. Stat. §768.79 and Fla. R. Civ. P. 1.442, but denied as to its Motion for Attorney’s Fees served pursuant to Fla. Stat. §57.105. The Court reserves jurisdiction to determine the amount of the award of attorney’s fees and costs to the Defendant, upon hearing.
