4 Fla. L. Weekly Supp. 479a

Insurance — Personal injury protection — Attorney’s fees — Insured’s action against insurer — Offer of judgment — Insurer cannot make an offer of judgment and recover attorney’s fees against an insured in a first-party PIP case — Question certified — Section 627.428 governs award of attorney’s fees in PIP cases — Insured’s motion to strike insurer’s offer of judgment is granted

WILLIE HOLCOMB, Plaintiff, v. FORTUNE INSURANCE COMPANY, Defendant. In the County Court of the 11th Judicial Circuit in and for Dade County. Case No. 96-1856 CC 23. July 26, 1996. Linda Singer Stein, Judge. Counsel: Stacey A. Giulianti, for Plaintiff. Kenneth B. Schurr, for Defendant.

ORDER ON REHEARING GRANTING PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S OFFER OF JUDGMENT AND CERTIFYING QUESTION OF GREAT PUBLIC IMPORTANCE TO THE THIRD DISTRICT COURT OF APPEAL

THIS CAUSE came before the Court on Defendant, Fortune Insurance Company’s Motion for Rehearing on Order to Strike Defendant’s Offer of Judgment. After careful consideration of the statutory and case authorities, hearing argument of counsel and being fully advised, this Court’s findings are set forth below.

I. Procedural Background

Plaintiff filed this action for PIP benefits on February 7, 1996 pursuant to Florida Statutes, sections 627.730 (Florida Motor Vehicle No-Fault Law), 627.736 (Required PIP Benefits) and 627.428. Section 627.428, Fla. Stat. governs the award of attorney’s fees in PIP cases and provides for such an award only in the following circumstances:

Upon rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

(Emphasis added).

On March 14, 1996, Defendant, Fortune Insurance Company, served an Offer of Judgment upon Plaintiff pursuant to section 768.79, Fla. Stat. That statute 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 him or on his 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.

Plaintiff argues that section 768.79, Fla. Stat., which provides for attorney’s fees to a defendant “in any civil action for damages” is in direct conflict with section 627.428, Fla. Stat., which does not provide for a recovery of attorney’s fees to insurers, but rather, provides for fees only to a prevailing insured and that section 768.71(3) resolves the conflict.

II. Legal Analysis

This issue is one of first impression as it has not been raised and decided in any published decision.¹ Plaintiff contends that section 627.730, Fla. Stat., the “No-Fault Law” sets forth mandatory rights and benefits to insureds and that, when read in pari materia with Sections 627.736(4)(b) and (c), the No-Fault Law does not permit to insurers the power to limit, curtail or define those rights and benefits. (Motion at p. 2). Plaintiff further maintains that “[t]he policy of the courts of Florida when construing provisions of the Florida No-Fault Act has always been to construe the act liberally in favor of the insured.” Palma v. State Farm Fire & Cas. Co., 489 So. 2d 147, 148 (Fla. 4th DCA 1986). Thus, to permit an Offer of Judgment to stand would visciate the purpose of the No-Fault statute which does not provide for fees to the “prevailing party”, but rather, only to the insured. Plaintiff concludes that section 768.71(3)’s plain language unambiguously resolves the conflict between statutes.

Defendant counters by asserting that the Offer of Judgment statute also has a specific purpose, i.e., to facilitate settlements and prevent frivolous lawsuits. Furthermore, the Offer of Judgment statutes explicitly applies “in any civil action for damages” and does not exclude first party suits for PIP benefits. Defendant maintains that because the Offer of Judgment statute is not ambiguous and it was amended last in time it prevails according to the general rule of statutory conflict resolution.

This Court finds that there is an inherent conflict between the No-Fault and Offer of Judgment statutes, for to apply the Offer of Judgment statute and permit an insurer to recover attorney’s fees is to visciate the purpose and protections of the No-Fault statutes. Similarly, Defendant’s argument that the statute is unambiguous and its last amendment in time prevails, also appears accurate. In light of this conflict, it becomes the Court’s duty to reconcile the two statutes to preserve their meaning. To do so this Court must look no further than to the plain language of the statutes involved. The plain language makes it clear that section 768.79, although amended last in time, is governed by section 768.71(3) which states “[i]f a provision of this part is in conflict with any other provision of the Florida Statutes, such other provision shall apply.” Therefore, the other provision, Section 627.428, applies.

Accordingly, it is ORDERED that the Plaintiff’s Motion to Strike Defendant’s Offer of Judgment is GRANTED.

CERTIFICATION OF QUESTION OF GREAT PUBLIC IMPORTANCE

Pursuant to Rules 9.030(b)(4) and 9.160(d), Fla. R. App. P., as this case is one of first impression in the State of Florida and is one of great public importance, this Court hereby certifies the following question to the Third District Court of Appeal:

Can an insurer make an Offer of Judgment and recover attorney’s fees against an insured in a first-party PIP suit?

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¹The Offer of Judgment statute has been deemed constitutional. See TGI Friday’s, Inc. v. Dvorak, 663 So. 2d 606 (Fla. 1995) and State Farm Mutual Automobile Ins. Co. v. Egan, 662 So. 2d 1076 (Fla. 3d DCA 1993). However, those cases do not in any manner address the issue raised in this matter.

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