24 Fla. L. Weekly Supp. 708b
Online Reference: FLWSUPP 2409LINDInsurance — Personal injury protection — Attorney’s fees — Proposal for settlement — Where medical provider rejected proposal for settlement and thereafter filed notice of voluntary dismissal, insurer is entitled to award of attorney’s fees and costs — Burden is on provider to prove that insurer did not make proposal in good faith — Issue of whether provider acted reasonably in rejecting proposal has no bearing on insurer’s entitlement to fee award
HOLLYWOOD DIAGNOSTICS CENTER a/a/o Barbara C. Lindsey, Plaintiff, vs. STAR CASUALTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 14 2359 SP 25 (01). July 4, 2016. Laura Anne Stuzin, Judge. Counsel: John J. Phillips, P.A., Law Office of John J. Phillips, PA, Palmetto Bay, for Plaintiff. Paul Michael Gabe, ROIG Lawyers, Deerfield Beach, for Defendant.
ORDER ON DEFENDANT’S MOTION FORENTITLEMENT TO ATTORNEY’S FEES AND COSTS
THIS CAUSE having come before the Court for hearing on May 25, 2016 on Defendant’s Motion for Entitlement to Attorney’s Fees and Costs and the Court having reviewed the motion; the entire Court file; and reviewing the relevant legal authorities; having heard arguments by Counsel; having made a thorough review of the matters filed on record; and having been otherwise fully advised in the premises, it is hereby
ORDER AND ADJUDGED:Undisputed Facts
1) On or about June 20, 2014, Defendant filed an Answer and Affirmative Defenses whereby it stated as its First Affirmative Defense, “Defendant in this case paid the medical bills in compliance with their policy and the Florida Statutes. There has been no breach of contract. The Policy specifically states under Limits of liability-Part B only: The insurer will limit reimbursement for medical expense under this coverage to 80 percent of the schedule of maximum charges as set forth in Florida Statute Section 627.736(5)(a)2, as follows:
a. For emergency transport and treatment by providers licensed under chapter 401, Florida Statutes, 200 percent of Medicare.
b. For emergency services and care provided by a hospital licensed under chapter 395, Florida Statutes, 75 percent of the hospital’s usual and customary charges.
c. For emergency services and care as defined by Florida Statute 395.002(9) provided in a facility licensed under chapter 395, Florida Statutes, rendered by a physician or dentist, and related hospital inpatient services rendered by a physician or dentist, the usual and customary charges in the community.
d. For hospital inpatient services, other than emergency services and care, 200 percent of the Medicare Part A prospective payment applicable to the specific hospital providing the inpatient services.
e. For hospital outpatient services, other than emergency services and care, 200 percent of the Medicare Part A Ambulatory Payment Classification for the specific hospital providing the outpatient services.
f. For all other medical services, supplies and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B. However, if such services, supplies, or care is not reimbursable under Medicare Part B, the insurer will limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under Florida Statute 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided. Services, supplies, or care that is not reimbursable under Medicare or workers’ compensation is not required to be and will not be reimbursed by the insurer.”
2) Defendant served on Plaintiff a Proposal For Settlement in the amount of $100.00 on or about October 2, 2015.
3) Plaintiff did not accept Defendant’s Proposal For Settlement within 30 days, thereby rejecting said Proposal For Settlement.
4) On December 2, 2015, Plaintiff filed a notice of voluntary dismissal.
5) On December 3, 2015 Defendant filed its motion for entitlement to fees and costs.Findings of Law
The Court hereby adopts the foregoing findings of fact. The sole issue is whether Defendant is entitled to reasonable attorney’s fees and costs under Florida Statute 768.79 for Defendant’s October 2, 2015 PFS. Florida Statute 768.79 reads, “[i]n any civil action for damages filed in the courts of this state, if a defendant files an 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. . .if the judgment is one of no liability”. In Sarkis v. Allstate Insurance Company, 863 So.2d 210, 222 (Fla. 2003) [28 Fla. L. Weekly S740a] the Court held that “statutory authorization for attorney fees is to be strictly construed”. The Legislature is responsible for enacting substantive law, and “the Legislature, by enacting 768.79, did not give judges the discretion to determine whether it is reasonable to reject an offer of judgment.” Id at 221, n.12 (citing TGI Friday’s, Inc. v. Dvorak, 663 So.2d 606 (Fla. 1995 [20 Fla. L. Weekly S436a]). In TGI Friday’s, Inc. v. Dvorak, 663 So.2d 606 (Fla. 1995) the Court held that the reasonableness of a rejection of a PFS had no bearing on the issue of entitlement to fees, but may have a bearing on the amount of attorney fees awarded by the Court. In Levine v. Harris, 791 So.2d 1175 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D1824a] the Court held that a PFS is made in good faith if the offeror had a reasonable foundation upon which to make his offer and the offer was made with the intent to settle. Furthermore, the burden is upon the offeree to prove that the offeror acted without good faith and whether the offeree unreasonably rejected the offer of judgment has no bearing on whether a party is entitled to attorney’s fees under Florida Statute 767.79. See Also: Sharaby v. KLV Gems Co., Inc., 45 So.3d 560 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2300a]; State of Florida Dept. of Transportation v. Bellsouth Telecommunications, Inc. 859 So.2d 1278 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D2745a]; Liggett Group, Inc., v. Davis, 975 So.2d 1281 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D786a].
Absent a showing by Plaintiff that Defendant’s offer was not made in good faith, the Court must award entitlement to attorney’s fees and costs pursuant to Florida Statute 768.79. Without a showing of bad faith, the Defendant’s PFS is presumed to be a reasonable offer and “a sanction is levied against the rejecting party for unnecessarily continuing litigation.” Sarkis at 222. After entitlement to attorney fees is awarded, Florida Statute 768.79(7)(b) and Florida Rule of Civil Procedure 1.442(h) lists criteria for evaluating the reasonableness of an award of attorney’s fees which will be levied as a sanction.
The Plaintiff argues that its notice of voluntary dismissal with prejudice should not be considered a judgment in determining application to the above-referenced statute. This Honorable court respectfully disagrees and finds a dismissal with prejudice a basis for judgment of no liability. In MX Investments, Inc. v. Crawford, the Florida Supreme Court held, “we conclude that to be entitled to an award of attorney fees under section 768.79, Florida Statutes (1991), there must be a dismissal with prejudice of the cause of action.” 700 So. 2d 640 at 642. (Fla. 1997) [22 Fla. L. Weekly S530a]. See Also: Olema Perez Espinos v. United Automobile Insurance Company, 21 Fla. L. Weekly Supp. 1055a.Conclusion
IT IS HEREBY ORDERED AND ADJUDGED that the Defendant’s, Star Casualty Insurance Company’s, Motion for Entitlement to Attorney’s Fees and Costs is hereby GRANTED. The Court finds that Defendant is entitled to attorney’s fees and costs pursuant to Florida Statute 768.79 and Florida Rule of Civil Procedure 1.442 with a reasonable amount to be determined at a later date and hearing. Defendant’s Motion For Sanctions pursuant to Florida Statute 57.105 is hereby, DENIED. The Court retains jurisdiction for the purpose of determining the reasonable amount of attorney’s fees and costs.
