27 Fla. L. Weekly Supp. 232b

Online Reference: FLWSUPP 2703REGOInsurance — Attorney’s fees — Proposal for settlement — Error to deny motion for attorney’s fees on ground that proposal for settlement did not strictly comply with rule 1.442 — Proposal is unambiguous and, therefore, enforceable

PROGRESSIVE SELECT INSURANCE COMPANY, Appellant, v. MULTICARE REHABILITATION, LLC, a/a/o Robert Rego, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE16-15397 (AP). L.T. Case No. COCE14-022054. April 25, 2019. Appeal from the County Court of the Seventeenth Judicial Circuit, Broward County, Peter B. Skolnik, Judge. Counsel: Kenneth P. Hazouri, deBeaubien, Simmons, Knight, Mantzaris & Neal, LLP, Orlando, for Appellant. Howard Myones, Myones Legal, PLLC, Fort Lauderdale, for Appellee.

[Lower court order published at 24 Fla. L. Weekly Supp. 760a.]

OPINION

(PER CURIAM.) Progressive Select Insurance Company (“Progressive”) appeals a final order entered in favor of Multicare Rehabilitation, LLC (“Multicare”) as to the legal sufficiency of Progressive’s Proposal for Settlement (“PFS”). Having carefully considered the briefs, the record, and the applicable law, this Court dispenses with oral argument and the final order is hereby REVERSED as set forth below:

In the proceedings below, Multicare filed a complaint against Progressive alleging Progressive failed to pay the full amount of benefits under a Personal Injury Protection (“PIP”) insurance claim. After Progressive served its PFS on Multicare, the county court entered an order granting Progressive’s Amended Motion for Final Summary Judgement, reserving jurisdiction to determine Progressive’s entitlement to attorney’s fees. Progressive thereafter filed its Second Motion for Entitlement and Motion to Tax Attorneys’ Fees and Costs and Memorandum of Law in Support Thereof (“Fee Motion”). The aforementioned Fee Motion was denied based on the county courts finding that Progressive had not strictly complied with Florida Rule of Civil Procedure 1.442 (“Rule 1.442”),¹ which requires a proposal for settlement to state whether it includes attorneys’ fees and whether attorneys’ fee are part of the legal claim.² Progressive then filed its Notice of Appeal solely concerning the denial of attorneys’ fees.³

“The eligibility to receive attorney’s fees and costs pursuant to section 768.79 and rule 1.442 is reviewed de novo.” Kuhajda v. Borden Dairy Co. of Alabama, LLC, 202 So. 3d 391, 393-94 (Fla. 2016) [41 Fla. L. Weekly S471a] (citing Pratt v. Weiss, 161 So. 3d 1268, 1271 (Fla. 2015) [40 Fla. L. Weekly S201a]).

The purpose of section 768.79, Florida Statutes, is to “reduce litigation costs and conserve judicial resources by encouraging the settlement of legal actions.” Attorneys’ Title Ins. Fund, Inc. v. Gorka, 36 So. 3d 646, 650 (Fla. 2010) [35 Fla. L. Weekly S196a]; see also Lucas v. Calhoun, 813 So. 2d 971, 973 (Fla. 2d DCA 2002) [27 Fla. L. Weekly D453c] (stating that “[p]roposals for settlement are intended to end judicial labor, not create more”). Section 768.79, Florida Statutes, states, in pertinent part:

In 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 by her or him or on the defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award. Where such costs and attorney’s fees total more than the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the plaintiff’s award. . . . If rejected, neither an offer nor demand is admissible in subsequent litigation, except for pursuing the penalties of this section.

§ 768.79(1), Fla. Stat. Additionally, Rule 1.442 works in concert with section 768.79, Florida Statutes, as it “provides the procedural framework to implement the substantive requirements of the section 768.79.” Kuhajda, 202 So. 3d at 395. Section 768.79, Florida Statutes, and Rule 1.442 must be strictly construed as they are in derogation of the common law rule that each party should pay its own fees. Id. at 394.

However, the court in Kuhajda represented a fundamental shift from a test of strict compliance when it declined to invalidate offers of judgment solely for violating a requirement in Rule 1.442 that section 768.79, Florida Statutes, did not require. Id at 395. The court in Kuhajda went on to explain that “[t]he procedural rule should no more be allowed to trump the statute here than the tail should be allowed to wag the dog. A procedural rule should not be strictly construed to defeat a statute it is designed to implement.” Id. at 395-96 (emphasis added); see also Unicare Health Facilities, Inc. v. Mort, 553 So. 2d 159, 161 (Fla. 1989) (explaining Rule 1.442 “was implemented solely to encourage settlements in order to eliminate trials if possible”). Thus, Kuhajda has warranted a relaxation of Florida’s strict compliance test with one more focused on whether proposals in question are ambiguous. Specifically, the Florida Supreme Court stated:

Kuhajda is entitled to attorney’s fees under section 768.79 because the offers of judgment at issue in this case are not ambiguous. . . . The failure to include the attorney’s fees language in the offer of judgment did not create an ambiguity because Kuhajda never sought attorney’s fees in her complaint. . . . Neither Borden Dairy nor Greenrock argues to the contrary, and it is indisputable that Kuhajda fully complied with the relevant requirements of the rule that implement the substantive requirements of section 768.79.

Id. at 396 (emphasis added).

Accordingly, proposals under the statute and rule must also be sufficiently clear and free of ambiguity to allow the offeree the opportunity to fully consider the proposal. State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006) [31 Fla. L. Weekly S358a]. However, Florida Courts have also not required the elimination of every ambiguity — only reasonable ambiguities:

We recognize that, given the nature of language, it may be impossible to eliminate all ambiguity. The rule does not demand the impossible. It merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification. If ambiguity within the proposal could reasonably affect the offeree’s decision, the proposal will not satisfy the particularity requirement [of Rule 1.442(c)(2)(C)-(D)].

Id. (emphasis added). Additionally, a proposal for settlement, as any other contract, must be read as a whole to determine whether it is ambiguous. See Kiefer v. Sunset Beach Invs., LLC, 207 So. 3d 1008, 1011 (Fla. 4th DCA 2017) [42 Fla. L. Weekly D132a]. Thus, when looking at a proposal as a whole, a court should not nitpick to search for an ambiguity. Id.

That said, and while this Court recognizes that the county court did not have the benefit of the Kuhajda decision at the time it rendered its final order,⁴ this Court finds the decision reached under a test of strict compliance with Rule 1.442 improper. This Court further finds Progressive’s PFS unambiguous, and is therefore, enforceable under Kuhajda and its progeny.

Accordingly, the final order in favor of Appellee is hereby REVERSED, and this case is REMANDED to the county court for further proceedings consistent with this Opinion. Appellant’s Motion for Attorney’s Fees is hereby GRANTED as to appellate attorney’s fees, with the amount to be determined by the trial court upon remand. Appellee’s Motion for Appellate Attorney’s Fees is hereby DENIED. (BOWMAN, PHILLIPS, and FRINK, JJ., concur.)

__________________

¹See Fla. R. Civ. P. 1.442(c)(2)(F).

²Id.

³Progressive’s costs were awarded pursuant to a separate order and are not an issue in the instant appeal.

⁴Florida’s “pipeline rule” requires that “disposition of a case on appeal should be made in accord with the law in effect at the time of the appellate court’s decision rather than the law in effect at the time the judgment appealed was rendered.” N. Broward Hosp. Dist. v. Kalitan, 174 So. 3d 403, 412 (Fla. 4th DCA 2015) [40 Fla. L. Weekly D1531a], aff’d, 219 So. 3d 49 (Fla. 2017) (quoting Hendeles v. Sanford Auto Auction, Inc., 364 So. 2d 467, 468 (Fla. 1978)).