5 Fla. L. Weekly Supp. 846a
Attorney’s fees — Offer of judgment — Insurance — Personal injury protection — Insurer can make offer of judgment and recover attorney’s fees against an insured in a first-party PIP suit — Question certified
Additional ruling in this case at 8 Fla. L. Weekly Supp. 405a
YUSEF CAYIRCI, Plaintiff, vs. U.S. SECURITY INSURANCE COMPANY, Defendant. County Court in and for Broward County. Case No. 97-15817-COCE-56. August 24, 1998. Robert W. Lee, Judge. Counsel: Charles Glen Ged, Boca Raton, for Plaintiff. Adolfo Podrecca, Ft. Lauderdale, for Defendant.
ORDER DENYING PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S PROPOSAL FOR SETTLEMENT
THIS CASE came before the Court on August 21, 1998 for hearing of the Plaintiff’s Motion to Strike Defendant’s Settlement Proposal, and the Court’s having reviewed the Motion and relevant legal authorities, heard argument of counsel, and been otherwise advised in the premises, rules as follows:
The Motion is DENIED. Plaintiff has cited several cases that support the proposition that, in a PIP case, an insurer cannot make an Offer of Judgment and recover attorney’s fees against an insured. See Cruz v. Allstate Ins. Co., 5 FLW Supp. 30 (11th Jud. Cir. 1997); Holcomb v. Fortune Ins. Co., 4 FLW Supp. 479 (Dade Cty. Ct. 1996). Both of these cases provided a detailed legal analysis supporting Plaintiff’s position. Nevertheless, just a few months ago, the Fifth District Court of Appeal issued an opinion to the contrary. Weesner v. USAA, 23 FLW D1049 (Fla. 5th DCA Apr. 24, 1998). The appellate court stated, “[w]e also reject their arguments . . . that section 627.428, Florida Statutes, precludes attorney’s fees to an insurance carrier under section 768.79, Florida Statutes.” Id. at D1050. Although the Weesner case involved UM benefits rather than PIP benefits, the two statutes addressed by the appellate court are the exact two statutes involved in the Plaintiff’s argument. Accordingly, the Court is obligated to follow the Weesner decision.
However, as in Holcomb, and pursuant to Rules 9.030(b)(4) and 9.160(d), Fla. R. App. P., this Court certifies the following question to the Fourth District Court of Appeal as being one of great public importance:
WHETHER AN INSURER CAN MAKE AN OFFER OF JUDGMENT (FS §768.79) AND RECOVER ATTORNEY’S FEES AGAINST AN INSURED IN A FIRST-PARTY PIP SUIT.
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