24 Fla. L. Weekly Supp. 432a
Online Reference: FLWSUPP 2406AMICInsurance — Attorney’s fees — Proposal for settlement — Small claims — Defendant’s motion to invoke Rules of Civil Procedure is granted — Invocation of rule 1.442, which applies to proposals for settlement, is appropriate in order to give full effect to section 627.736(8)
NEUROLOGY PARTNERS, P.A., Plaintiff, v. AMICA MUTUAL INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County, Division CC-P. Case No. 2016-SC-1794. July 19, 2016. Eric C. Roberson, Judge. Counsel: Law Offices of D. Scott Craig, LLC, Jacksonville, for Plaintiff. Byron R. Cornwell, Quintairos, Prieto, Wood & Boyer, P.A., Jacksonville, for Defendant.
ORDER ON DEFENDANT’S MOTION TOINVOKE RULES OF CIVIL PROCEDURE
THIS CAUSE came before the Court on Defendant’s Motion to Invoke Rules of Civil Procedure. After hearing the argument of counsel and being fully informed in the premises, the Court finds as follows:
1. In this Personal Injury Protection (“PIP”) lawsuit, Defendant’s Motion seeks to invoke the Rules of Civil Procedure. The main point of contention focuses on Rule 1.442 governing Offers of Judgment or Proposals for Settlement. Accordingly, the Court’s analysis will mainly focus on the interplay between the PIP statutes, the Florida Small Claims Rules and the law applicable to Offers of Judgment.
FRAMEWORK OF STATUTES ANDRULES FOR OFFERS OF JUDGMENT
2. Offers of Judgment are governed by both Rule 1.442 as well as Section 768.79, Florida Statutes (the “Offer of Judgment Statute”). In order to recover fees and costs, an Offer of Judgment must strictly comply with both Rule 1.442 and the Offer of Judgment Statute. See e.g. Audiffred v. Arnold, 161 So. 3d 1274, 1277-78 (Fla. 2015) [40 Fla. L. Weekly S199a].
3. The Offer of Judgment Statute applies to “any civil action for damages filed in the courts of this state. . . .” § 768.79(1), Fla. Stat. On the other hand, Rule 1.442 applies to “all proposals for settlement authorized by Florida law. . . .” Fla. R. Civ. P. 1.442(a).
4. Small claims actions such as this case are governed by the Florida Small Claims Rules, which are designed to implement “the simple, speedy, and inexpensive trial of actions at law in county court.” Fla. Sm. Cl. R. 7.010(a).
5. The Small Claims Rules explicitly incorporate certain discovery provisions from the Rules of Civil Procedure. See Fla. Sm. Cl. R. 7.020. However, Rule 1.442 is not incorporated into the Small Claims Rules.
6. The Court is given broad discretion in its decision to invoke any additional provisions of the Rules of Civil Procedure. See Fla. Sm. Cl. R. 7.020(c). The Court can invoke 1 or more of the Rules of Civil Procedure upon a request from either party, a stipulation of both parties, or on the Court’s own initiative. Id.
7. Section 627.736, Florida Statutes (the “PIP Statute”) sets forth many standards that govern PIP lawsuits. The PIP Statute appears to provide attorneys’ fees only for the insured who ultimately obtains a judgment against the insurer. See § 627.736(8), Fla. Stat.; § 627.428, Fla. Stat. The statutes do not expressly provide for attorneys’ fees for a prevailing insurer.
8. This “one way” attorneys’ fee provision was in effect until 2013, when the PIP Statute was amended to expressly incorporate the Offer of Judgment Statute into the PIP Statute. See § 627.736(8), Fla. Stat. (2013).
PLAINTIFF’S ARGUMENT AGAINSTINVOKING RULE 1.442
9. Understandably, Plaintiff does not want their client to bear the risk of attorneys’ fees in the event of an adverse outcome. Plaintiff argues that there is a clear legislative mandate that only insureds are eligible to recover their attorneys’ fees in a PIP action such as this. To enable Offers of Judgment, Plaintiff argues, would undermine the legislature’s clear intent.
10. The Florida Supreme Court has flatly rejected this argument in State Farm Mutual Auto. Ins. Co. v. Nichols, 932 So. 2d 1067 (Fla. 2006) [31 Fla. L. Weekly S358a]. In Nichols, the Supreme Court dealt with a previous version of the PIP Statute that did not expressly reference the Offer of Judgment Statute. In very broad terms, the Supreme Court held that the Offer of Judgment Statute applies to PIP lawsuits and does not conflict with the “one way” attorneys’ fee provision in the PIP Statute. See Nichols, 932 So. 2d at 1074-77.
11. Following the Nichols decision, the legislature amended the PIP Statute to expressly reference the Offer of Judgment Statute in section 8.
12. Plaintiff correctly points out that Nichols was not a small claims case and the decision only speaks to the Offer of Judgment Statute and not Rule 1.442. But such a hyper-technical distinction would lead to an absurd result that ignores and frustrates clear legislative intent. Given the express statutory language applying the Offer of Judgment Statute to PIP cases, it would make no sense to stymie that clear directive by not invoking the corresponding Rule.
THIS COURT WILL GIVE EFFECT TOTHE CLEAR STATUTORY LANGUAGE
13. The primary and overriding consideration in statutory interpretation is that a statute should be construed and applied so as to give effect to the evident intent of the legislature. Carmack v. State Dept. of Agriculture, 31 So. 3d 798, 800 (Fla. 1st DCA 2009) [34 Fla. L. Weekly D2357a].
14. The legislature does not intend to enact useless provisions, and courts should avoid interpretations that would render part of a statute meaningless. FT Investments, Inc. v. State Dept. of Environmental Protection, 93 So. 3d 369, 371 (Fla. 1st DCA 2012) [37 Fla. L. Weekly D1410a].
15. If the Court declined to invoke the Offer of Judgment Rule, it would render a portion of the PIP Statute useless and meaningless. The Court declines to do that and, instead, will invoke Rule 1.442 in order to give full effect to Section 627.736(8), Florida Statutes.
16. Because the Florida Supreme Court and, later, the legislature have explicitly stated that Offers of Judgment apply to PIP lawsuits, Rule 1.442 must also apply.
17. At the hearing, the parties also agreed that if Rule 1.442 was invoked, the other Rules of Civil Procedure should also be invoked for reasons both specific to this case and issues that commonly arise in PIP litigation.
Accordingly, it is ORDERED and ADJUDGED:
1. Defendant’s Motion to Invoke Civil Procedure Rules is GRANTED.
2. The Court hereby invokes the Florida Rules of Civil Procedure in its entirety.
