26 Fla. L. Weekly Supp. 982a
Online Reference: FLWSUPP 2612COR2Insurance — Personal injury protection — Attorney’s fees — Proposal for settlement — Good faith offer — Minimal offer was made in good faith where insurer had reasonable belief that its liability for benefits to insured who failed to appear at two examinations under oath would be nominal — Insurer is entitled to award of attorney’s fees and costs
CARIBBEAN REHABILITATION CENTER, INC., a/a/o Reynier Cordoves, Plaintiff(s), v. STATE FARM MUT. AUTO. INS. CO., Defendant(s). County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 2014-016327-CC-25, Section CG 02. September 1, 2017. Gina Beovides, Judge.
ORDER GANTING DEFENDANT’S MOTION FORENTITLEMENT TO ATTORNEY’S FEES AND COSTS
THIS CAUSE came before the Court on July 27, 2017 on Defendant’s Motion for Entitlement to Attorney’s Fees and Costs, and the Court, having considered the Motion and the entire Court file, heard argument, considered the relevant legal authorities and been sufficiently advised in the premises, finds as follows:
On December 29, 2014, Plaintiff filed a Complaint for breach of contract action against Defendant for PIP benefits believed to be due or owing. On February 24, 2015, Defendant filed its Answer and Affirmative Defenses. One of the affirmative defenses raised by Defendant was based on the claimant’s failure to appear to two previously scheduled examinations under oath. On April 7, 2015, the Defendant served Plaintiff with its proposal for settlement pursuant to Rule 1.442, Fla. R. Civ. P., and Fla. Stat. §768.79. The Plaintiff did not accept the proposal for settlement. On April 22, 2015, Defendant filed its Motion for Summary Judgment on based on the failure to attend the examination under oath. On December 23, 2016, the Court granted Defendant’s Motion for Summary Judgment and a Final Judgment was entered on May 12, 2017. The Order granting Defendant’s Motion for Final Summary Judgment is one of zero liability and renders the Defendant the prevailing party. The Defendant timely filed and served its Motion to Determine Entitlement to attorney’s fees and costs based on being the prevailing party and because it had an expired proposal for settlement. Defendant’s proposal for settlement was in the amount of $50.00 for medical benefits and $50 for attorney’s fees. At the hearing, Plaintiff contends that Defendant’s proposal for settlement was not made in good faith.
There is no dispute that Plaintiff received the proposal for settlement and failed to accept it within thirty (30) days of receipt. Under Florida law, absent a finding that a party’s offer of judgment was not made in good faith, the offeror is entitled to its attorney’s fees. The issue of good faith is determined solely by the subjective motivations and beliefs of the offeror at the time the offer was made. Wagner v. Brandeberry, 761 So. 2d 443 (Fla. 2d DCA 2000) [25 Fla. L. Weekly D1344b]. Florida courts have held that the “obligation of good faith” merely insists that the offeror have some reasonable foundation on which to base an offer.” Weesner v. United Services Auto. Ass’n, 711 So. 2d 1192, 1194 (Fla. 5th DCA 1998) [23 Fla. L. Weekly D1049a]. Based on the amount at issue, Defendant’s offer in this case was for a nominal amount. However, Florida courts have upheld nominal proposals for settlement, as long as made in good faith. See, e.g. State Farm Mut. Auto. Ins. Co., v. Marko, 695 So. 2d 874, 876 (Fla. 2d DCA 1997) [22 Fla. L. Weekly D1505c] (holding offer of judgment for $1.00 to be in good faith when secondary insurer believed liability would not exceed primary policy limits).
In the matter sub judice, although Defendant’s offer may be construed as nominal, its affirmative defense was, among others, that Plaintiff failed to meet a condition precedent because the claimant failed to attend the examination under oath, and therefore it had zero liability. Plaintiff rejected the offer because it believed the affirmative defense did not apply to the facts of this case. Specifically, Plaintiff argued that because the Defendant had scheduled the examination under oath after thirty days, Defendant was already in breach of the contract and could not rely on this affirmative defense. In defense of its position, Plaintiff relied on Amador v. United Auto. Ins. Co., 748 So. 2d 307 (Fla. 3rd DCA 1999) [24 Fla. L. Weekly D2437a] (holding that an insured’s refusal to submit to examinations under oath requested by insurer more than thirty days after receiving notice of claims for personal injury protection did not preclude them from suing insurer on the thirty first day). Ultimately, the Court disagreed and found revisions to Florida Statute §627.736, specifically §627.736(6)(g) did not impose a thirty day limit to request an examination under oath, and therefore Amador no longer applied.
The arguments raised on Defendant’s summary judgment were purely issues of statutory interpretation. At the time the proposal for settlement was served, no other court had ruled on this issue. By the time the summary judgment was argued, however, there were split decisions in the lower courts. See Savin Medical Group, LLC v. State Farm Mut. Auto. Ins. Co., 23 Fla. L. Weekly Supp. 762b (11th Jud. Cir. December 4, 2015); Atlantic Coast Orthopaedics, LLC v. State Farm Mut. Auto. Ins. Co., 23 Fla. L. Weekly Supp. 881a (17th Jud. Cir. March 4, 2016); but also see Central Florida Chiropractic Care v. Geico Indemnity Company, 24 Fla. L. Weekly Supp. 152a (9th Jud. Cir., April 22, 2016). This fact alone, however, is insufficient to find that Defendant’s offer not made in good faith. Based on the facts and the evidence presented, this court cannot find that Defendant lacked a reasonable foundation on which to base its offer. The rule is that a minimal offer can be made in good faith if the evidence demonstrates that, at the time it was made, the offeror had a reasonable basis to conclude that its exposure was nominal. See e.g. State Farm Mut. Auto. Ins. Co. v. Sharkey, 928 So. 2d 1263, 1264 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1445a]; United Automobile Insurance Company v. Partners in Health Chiropractic Center, 24 Fla. L. Weekly Supp. 785a (11th Jud. Cir., January 2, 2017))(appellate capacity).
Based on the foregoing, Defendant’s Motion for Entitlement to Attorney’s Fees and Costs is GRANTED.
