5 Fla. L. Weekly Supp. 303a
Attorney’s fees — Offer of judgment — Insurance — Motion to strike insurer’s offer of judgment granted — Section 768.79 is in direct conflict with section 672.428, which offers attorney’s fees only to successful insured or beneficiary
Additional ruling in this case at 25 Fla. L. Weekly D2055b
ALBERTO CRUZ and ANGELA CRUZ, Plaintiffs, vs. ALLSTATE INSURANCE COMPANY, Defendant. 11th Judicial Circuit in and for Dade County, General Jurisdiction Division. Case No. 97-11401 CA 30. November 12, 1997. Murray Goldman, Judge.
ORDER
THIS CAUSE came on to be heard upon the plaintiffs’ motion to strike the defendant’s offer of judgment. The Court has heard argument of counsel and reviewed the applicable law. This is a case of first impression as there are no appellate decisions directly on this issue.
Pursuant to §768.79 Florida Statutes (1997) Allstate Insurance Company served an offer of judgment. Plaintiffs filed a motion to strike this offer of judgment on the grounds that §768.79 is in direct conflict with §627.428 Florida Statutes (1997), and is unconstitutional as applied to a first party insured.
§627.428 is a one way street offering attorney’s fees only to a successful insured or beneficiary. The public policy of this aspect of the statute is to discourage insurers from contesting valid claims and to reimburse successful policy holders forced to sue to enforce their own policies. Under the statute, an insured who prevails is entitled to attorney’s fees. The statute offers no similar prospect to the insurance carrier. See Danis Industries Corporation v. Ground Improvement Technics, Inc., 645 So. 2d 420 (Fla. 1994).
While there is no appellate decision directly on point, there is an excellent opinion issuing from the County Court in Dade County, in the case Holcomb v. Fortune Insurance Company for Florida Law Weekly Supplement 479 (1996). The Court therein noted the inherent conflict between the two statutes and considered that to apply the offer of judgment statute and permit an insurer to recover attorney’s fees is to vitiate the purpose and protections of a statute such as 627.428. The County Court opinion certified this question as being of great public importance and the matter was in fact taken to the Third District Court of Appeals (Appellate Case Number – 96-2564); however, was dismissed without the matter being considered on the merits by the Third District Court of Appeals.
This Court agrees with the reasoning as set forth by the County Court; and therefore, grants plaintiffs’ motion to strike the defendant’s offer of judgment.
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