5 Fla. L. Weekly Supp. 595c

Civil procedure — Offer of judgment — Insurance — Insured’s proposal for settlement, filed pursuant to rule 1.442 and section 768.79, is improper on its face — Section 768.79, governing offers of judgment, does not apply to no-fault benefits claims — Insured’s motion to strike proposal for settlement granted

STEVEN D. TYREE, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. 5th Judicial Circuit in and for Marion County. Case No. 97-5867-CA-A. April 8, 1998. William C. Swigert, Judge. Counsel: Robert D. Melton, Robert D. Melton, P.A., Orlando, for Plaintiff. J. David Walsh, Ocala, for Defendant.

ORDER ON PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S PROPOSAL FOR SETTLEMENT

THIS CAUSE having come before this Court on April 8, 1998, on Plaintiff’s Motion to Strike Defendant’s Proposal for Settlement and Memorandum of Law in Support Thereof, in the above referenced cause, and the Court having reviewed the file and having heard arguments of counsel and being otherwise fully advised in the premises, it is hereby

ORDERED AND ADJUDGED as follows:

1. That based on the Supreme Court’s opinion in Danis Industries Corp. v. Ground Improvement Techniques, Inc., 645 So.2d 420 (Fla. 1994), Defendant’s Proposal of Judgment is improper on its face. Fla. Stat. §768.79 does not apply to no-fault benefits claims which are provided for by Fla. Stat. §627.428. Therefore, Plaintiff’s Motion to Strike Defendant’s Proposal for Settlement its hereby GRANTED.

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MOTION TO STRIKE DEFENDANT’S PROPOSAL FOR SETTLEMENT AND MEMORANDUM OF LAW IN SUPPORT THEREOF

Plaintiff, STEVEN D. TYREE, by and through his undersigned attorney, hereby moves this Honorable Court to Strike Defendant’s, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY’S, Proposal of Settlement, and as grounds in support thereof so states:

1. On September 9, 1997, Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, pursuant to rule 1.442 of the Florida Rules of Civil Procedure and Fla.Stat. §768.79, filed it’s “Notice of Service of Proposal of Judgment,” a copy of which is attached hereto as Exhibit “A.”

2. Under Fla.Stat. §627.428, an insured who prevails is entitled to attorney’s fees and the statute offers no similar prospect for the insurer. Danis Industries Corp. v. Ground Improvement Techniques, Inc., 645 So.2d 420 (Fla. 1994). Therefore, Defendant’s Proposal for Settlement is improper and should be stricken.

3. As an alternative, when a general statute conflicts with a specific statute, the specific statute controls in matters within the specific statute’s scope. McKendry v. State, 641 So.2d 45 (Fla. 1994). Fla.Stat. §627.428 is the specific statute governing attorney’s fee awards in cases involving disputes over personal injury protection benefits and when in conflict with Fla.Stat. §768.79, Fla. Stat. §627.428 controls. Defendant’s Proposal for Settlement, which is merely an Offer of Judgment, is simply an attempt to circumvent the provisions of Fla.Stat. §627.428, and therefore should be stricken.

4. In a similar case, on April 4, 1997, in the Circuit Court in Orange County, The Honorable W. Rogers Turner, Circuit Court Judge, struck the defendant’s offer of judgment in Turner v. State Farm Fire and Casualty Company, case no. CI 96-1409. A copy of the Order on Plaintiffs’ Motion to Strike Defendant’s Offer of Judgment is attached hereto as Exhibit “B.”

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S PROPOSAL FOR SETTLEMENT I.A SPECIFIC STATUTE CONTROLS OVER A GENERAL STATUTE

An insured who prevails over his insurer is entitled to attorney’s fees and the statute offers no similar prospect to the insurer. Danis Industries Corp. v. Ground Improvement Techniques, Inc., 645 So.2d 420 (Fla. 1994); Fla.Stat. §627.428. Defendant’s Proposal of Settlement is an attempt to circumvent the provisions of Fla.Stat. §627.428 through the provisions of Fla.Stat. §768.79, which states that if the offering party prevails or if the court enters a judgment in an amount which is more than 25% less than the amount offered through a [proposal for settlement], the offering party is entitled to an award of attorney’s fees incurred from the date the Proposal for Settlement was made. This would, in the present lawsuit, create a situation where the two statutes addressed above were in direct conflict.

When a general statute conflicts with a specific statute, the specific statute covering a particular area controls in matters within the specific statute’s scope over a more general statute covering the same and other subjects in more general terms. McKendry v. State, 641 So.2d 45 (Fla. 1994); see Adams v. Culver, 111 So.2d 665 (Fla. 1959). Fla.Stat. §627.428 is a statute which addresses the issue of attorney’s fees to the prevailing party in a dispute between an insured and his or her insurer. This case involves a dispute between an insured and his insurer and thus comes within the scope of Fla.Stat. §627.428. Fla.Stat. §768.79 addresses the issue of the entitlement to attorney’s fees in all civil cases, and therefore is a statute that covers this case and others in more general terms. Therefore, Fla.Stat. §627.428 controls, and under Danis, no right to attorney’s fees in favor of the insurer exists, whether the insurer is the prevailing party or not.

II.INAPPLICABILITY OF THE OFFER OF JUDGMENT STATUTE

The Florida Motor Vehicle No-Fault Law, Fla.Stat. §627.730 et seq. provides that if an insurer does not pay the personal injury protection benefits to which the insured is entitled within thirty (30) days of the date the medical bills were submitted to the insurer, the insured may bring a cause of action for such non-payment against the insurer and, if the insured prevails, is entitled to an award of attorney’s fees and costs. See Fla.Stat. §627.736(8), which states that the provisions of Fla.Stat. §627.428 shall apply to a dispute involving personal injury protection benefits. Under Fla.Stat. §627.428, an insured who prevails is entitled to attorney’s fees and the statute offers no similar prospect to the insurer. Danis Industries Corp. v. Ground Improvement Techniques, Inc., 645 So.2d 429 (Fla. 1994). In holding that the prevailing party test enunciated in Moritz v. Hoyt Enterprises, 604 So.2d 807 (Fla. 1992), does not apply to disputes involving personal injury protection benefits, the Court states:

“Here, the statute is a one-way street offering the potential for attorney’s fees only to the insured or beneficiary. The apparent public policy underlying 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 policies… Under the present statute, an insured or beneficiary who prevails is entitled to attorney’s fees. The statute offers no similar prospect to the surety, nor does the statute say that the fees will be unavailable if the surety prevails on some but not all of the issues.”

Danis, 645 So.2d 421 (citing Fewox v. McMerit Constr. Co., 556 So.2d 419 (Fla. 2d DCA 1989).

Additionally, Fla.Stat. §768.79 falls within the general statutory chapter on damages, Fla.Stat. §768.71 et seq. The first statute of that chapter, Fla.Stat. §768.71: Applicability: conflicts, states at subparagraph (3) that “if a provision of this part is in conflict with any other provision of the Florida Statutes, such other provision shall apply.

Clearly, the provisions of the Offer of Judgment Statutes conflict with the Florida Motor Vehicle No-Fault Law which through Fla.Stat. §627.428 provides for attorney’s fees and costs only to the insured in a dispute over personal injury protection benefits, and thus the Proposal for Settlement, which is the same as an Offer of Judgment, cannot be used in a No-Fault context. The public policy of Florida as expressed in Danis dictates that the Offer of Judgment statutes be held inapplicable to a suit by an insured for personal injury protection benefits. Therefore, Defendant’s Proposal for Settlement should be stricken.

WHEREFORE, Plaintiff, STEVEN D. TYREE, respectfully requests that this Honorable Court strike Defendant’s, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Proposal for Settlement, and for all other just and proper relief.

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by U. S. Mail to J. David Walsh, Esq. P.O. Box 5549, Ocala, FL 34478-5549 this 3rd day of October, 1997.

/s/ Robert D. Melton, Esquire

(Fla. Bar #54218)

ROBERT D. MELTON, P.A.

P.O. Drawer 1032

Orlando, FL 32802-1032

(407) 841-4400

Attorney for Plaintiff

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EXHIBIT “A”

NOTICE OF SERVICE OF PROPOSAL OF JUDGMENT

Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, by and through its undersigned attorney, gives notice that a Proposal of settlement, pursuant to Fla. R. Civ. P. 1.442 has been served upon the Plaintiff, STEVEN D. TYREE.

I HEREBY CERTIFY that a copy of the foregoing has been furnished, by mail, to Robert D. Melton, Esquire, P. O. Drawer 1032, Orlando, FL 32802-1032, this 9th day of September, 1997.

CAMERON, MARRIOTT, WALSH

HODGES & COLEMAN

/s/ J. David Walsh, Esquire

P.O. Box 5549

Ocala, FL 34478-5549

352/351-1119 jec

Attorneys for Defendant

FL Bar #241415

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EXHIBIT “B”

DEBORAH TURNER and BRUCE TURNER, Plaintiffs, vs. STATE FARM FIRE AND CASUALTY COMPANY, Defendant. 9th Judicial Circuit in and for Orange County, Florida. Case No. CI 96-1409. April 4, 1997. W. Rogers Turner, Judge.

ORDER ON PLAINTIFFS’ MOTION TO STRIKE DEFENDANT’S OFFER OF JUDGMENT

THIS CAUSE having come before this court on April 3, 1997, on Plaintiffs’ Motion to Strike Defendant’s Offer of Judgment and the Court having reviewed said Motion and Memorandum of Law in Support thereof; having heard argument of counsel; and being otherwise duly informed in the premises, the Court, it is therefore:

ORDERED AND ADJUDGED:

1. That based on the Supreme Court’s opinion in Danis Industries Corp. v. Ground Improvement Techniques, Inc., 645 So.2d 420 (Fla. 1994), Defendant’s Offer of Judgment is improper on its face it that Fla.Stat. §768.79 does not apply to no-fault benefits claims which are provided for by Fla.Stat. §627.428. Therefore, Plaintiffs’ Motion to Strike Defendant’s Offer of Judgment directed to COUNT II of Plaintiffs’ Complaint concerning no-fault benefits is hereby GRANTED.

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