25 Fla. L. Weekly Supp. 968b
Online Reference: FLWSUPP 2511BRACInsurance — Small claims — Offer of judgment — Because section 768.79(1) provides that defendants may file offer of judgment in any civil action for damages but fails to provide a procedure for doing so, court has no discretion but to invoke Rule 1.442 in case filed under small claims rules
BRACKEN FAMILY CHIROPRACTIC CENTER, P.A., as assignee of Angela Bracken, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Clay County, Small Claims. Case No. 2017-SC-001430. Division C. January 16, 2018. Timothy R. Collins, Judge. Counsel: D. Scott Craig, Law Office of D. Scott Craig, L.L.C., Jacksonville, for Plaintiff. James C. Rinaman, Dutton Law Group, P.A., Jacksonville, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION TOINVOKE THE FLORIDA RULES OF CIVIL PROCEDURE
This cause came to be heard upon Defendant’s Motion to Invoke the Florida Rules of Civil Procedure. Both parties were represented by counsel. The Court, having heard arguments of the parties,
ORDERED and ADJUDGED that:
1. This Court is compelled to grant Defendant’s Motion to Invoke the Florida Rule of Civil Procedure 1.442, because the Legislature announced in F.S. §768.79(1) that “In any civil action for damages filed in the courts of this state” defendants may file an offer of judgment. There is no procedure for doing so, in the statute. The corresponding procedural Rule is 1.442.
2. Rule 1.442 is not included in the Florida Small Claims Rules, as enumerated in Small Claims Rules 7.020(a) and 7.020(b). Small Claims Rule 7.020(c) states that “In any particular action, the court may order that action to proceed under 1 or more additional Florida Rules of Civil Procedure on application of any party or the stipulation of all parties or on the court’s own motion”.
3. The parties have agreed to the application of all Florida Rules of Civil Procedure other than Rule 1.442, and this Court so orders. Plaintiff objects only to Rule 1.442, and urges this Court not to exercise its discretion afforded by Small Claims Rule 7.020(c), and to decline Defendant’s Motion to Invoke Rule 1.442.
4. This Court acknowledges the apparent and unresolved conflict between F.S. §768.79(1) and Small Claims Rule 7.020(c), and its silence as to Florida Rule of Civil Procedure 1.442 when it amended the Florida No-Fault Law in 2012. This Court would decline to invoke Rule 1.442 in this case in accordance with Plaintiff’s objection, if this Court believed it had discretion to do so. However, this Court finds that F.S. §768.79(1) effectively deprives the Court of any such discretion, and that Rule 1.442 must be invoked “In any civil action for damages filed in the courts of this state”, including all cases filed under the Florida Small Claims Rules, pursuant to the dictates of the Florida Legislature.
