25 Fla. L. Weekly Supp. 495a
Online Reference: FLWSUPP 2505MONAInsurance — Attorney’s fees — Offer of judgment — Award of attorney’s fees under offer of judgment statute requires either adjudication on merits or dismissal with prejudice — Voluntary dismissal without prejudice does not trigger entitlement to attorney’s fees under statute, even when statute of limitations had expired prior to entry of voluntary dismissal
Y.H. IMAGING CENTER, INC. (a/a/o Monahan, Gladys), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE-14-008643 (52). July 20, 2017. Giuseppina Miranda, Judge. Counsel: Nicolas Lampariello, Lampariello Law Group, LLP, for Plaintiff. Ryan Luering, ROIG Lawyers, for Defendant.
ORDER DENYING DEFENDANT’S AMENDED MOTIONFOR ENTITLEMENT TO ATTORNEY’S FEES
THIS CAUSE having come on before the Court for hearing on Defendant’s Amended Motion for Entitlement to Attorney’s Fees, and the Court having reviewed the file, considered the relevant case law and heard oral arguments, it is hereby ORDERED and ADJUDGED: Defendant’s Amended Motion for Entitlement to Attorney’s Fees is DENIED due to the fact that no adjudication on the merits has occurred and Plaintiff’s Voluntary Dismissal was without prejudice.
The Court finds that MX Investments, Inc. v. Crawford, 700 So.2d 640 (Fla. 1997) [22 Fla. L. Weekly S530a] controls this matter, and specifically adopts the holding that an award of attorney’s fees under §768.79, Fla. Stat. requires either an adjudication on the merits or a dismissal with prejudice.
The Court has considered Defendant’s argument that a voluntary dismissal without prejudice after the statute of limitation would entitle Defendant to fees due to the fact that Plaintiff’s claim would be procedurally barred. However, the Court finds this analysis to be a strained reading of the statute and the current jurisprudence on this issue. In rejecting Defendant’s argument, the Court specifically adopts and applies the holding of Gammie v. State Farm Mutual Auto. Ins. Co., 720 So.2d 1163 (Fla. 3d DCA 1998) [23 Fla. L. Weekly D2596a]. A voluntary dismissal without prejudice does not trigger entitlement to attorney’s fees under §768.79, even when the statute of limitations has expired prior to the entry of a voluntary dismissal.
The Court also rejects the Defendant’s reliance on Sherman v Savastano, 2017 Fla. App. LEXIS 8983; WL 2665064 (Fla. 4th DCA 2017) [42 Fla. L. Weekly D1405a]. Contrary to the instant case, the Sherman case was tried on the merits and resulted in Defendant’s offer of judgment being enforced by the appellate. If the court were to adopt Defendant’s reasoning, then judges would be required to scrutinize every case that is voluntarily dismissed after the expiration of an offer for settlement to basically determine the merits of the case and/or the analyze the conduct of the parties. There are already mechanisms in place (Fla. R. Civil Pro. 1.420(d) and §57.105) to award costs for voluntary dismissal without prejudice and/or sanctions due to litigants conduct. Absent statutory authority or reversal of MX Investments Inc. v. Crawford, Defendant is not entitled to attorney’s fees
