6 Fla. L. Weekly Supp. 179b
Insurance — Personal injury protection — Attorney’s fees — Offer of judgment — Insured’s motion to strike insurer’s proposal for settlement, which cited section 768.79 as legal basis for proposal, is granted — Offer of judgment statute does not apply to actions brought pursuant to section 627.736
BERNARDO RAMIREZ, Plaintiff, vs. U.S. SECURITY INSURANCE COMPANY, Defendant. County Court in and for Dade County, Civil Division. Case No. 98-2331-CC-26(02). November 18, 1998. Bonnie L. Rippingille, Judge. Counsel: Martin E. Levine, for Plaintiff. Michael A. Nuzzo, for Defendant.
AMENDED ORDER ON PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S OFFER OF JUDGEMENT
Plaintiff brought this action pursuant to Fla. Stat. 627.736 for personal injury protection benefits following an automobile accident which occurred on May 26, 1997. Defendant served a proposal for settlement pursuant to Fla. R. Civ. Proc. 1.442 identifying §768.79, Fla. Stat., the offer of judgment statute as the legal basis for the proposal. Plaintiff moved to strike the proposal for settlement on the ground that the application of §768.79 to actions brought under §627.736 conflicts with §768.71(3), §627.736(8), §627.428 Fla. Stat.
Section 627.428 Fla. Stat. provides for an award of attorney’s fees only in the following circumstances:
Upon the rendition of a judgment or decree in 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 … 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 recovery is had.
Section 627.736(8) Fla. Stat. specifically includes the PIP statute and provides:
Applicability of provision regulating attorney’s fees. — With respect to any dispute under the provisions of ss. 627.730-627.7405 between the insured and the insurer, the provisions of s. 627.428 shall apply.
The offer of judgment statute §768.79 provides for an award of attorney’s fees.
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 a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plan recovers a judgment in amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney’s fees incurred from the date of the filing of the demand. If rejected, neither an offer nor demand is admissible in subsequent litigation, except for pursuing the penalties of this section.
The issue presented for review is whether the offer of judgment statute, §768.79 Fla. Stat. is applicable to actions brought pursuant to section 627.736 Fla. Stat. This issue is one of first impression although this court recognizes several prior decisions by Dade County judges.
Section 627.736 Fla. Stat., commonly known as the PIP statute, creates a statutorily mandated cause of action in derogation of common law and confers substantive rights to the Plaintiff, while at the same time limiting liability of insurers to $10,000.00. The legislative intent was to give successful plaintiffs who were forced to sue their own insurance company for PIP benefits a “one way street,” to recover fees from the insurer. The underlying public policy is to discourage insurers from contesting valid claims and to reimburse successful policy holders forced to sue to enforce their right to benefits. See Danis Industries Corp. v. Ground Improvement Techniques, Inc., 645 So.2d 420 (Fla. 1994).
Although amended last in time, the offer of judgment statute, section 768.79 is a general statute applicable to civil actions for damages. The PIP statutes section 627.428 is a specific statute which covers a delineated subject area granting protection to insureds and limiting the liability of insurance carriers not based upon fault. The rules of statutory construction require the courts to consider the more specific statute as an exception to the general terms of the more comprehensive statute. McKendry v. State, 641 So.2d 45 (Fla. 1994). Shriners Hospital for Crippled Children v. Zrillic, 563 So.2d 64 (Fla. 1990).
Moreover, the plain language of section 768.71 Fla. Stat. of which the offer of judgment statute, section 768.79 is a part, clearly states that… “if a provision of this part is in conflict with any other provision of the Florida statutes, such other provisions shall apply.” In both Holcomb v. Fortune Insurance Company, 4 FLW Supp. 479 (Dade County Court 1996), and Cruz v. Allstate Insurance Company, 5 FLW Supp. 30 (Eleventh Circuit 1997) the courts found inherent conflict between the offer of judgment statute and the PIP statute and applied section 768.71(3) Fla. Stat. to resolve the conflict holding that an offer of judgment could not be filed in a PIP action. This Court concurs with these opinions.
The defendant cites the recent decision of the Fifth District Court of Appeal in Weesner v. United Services Automobile Association, 711 So.2d 1192 (Fla. 5 DCA 1998), which held that the attorney’s fees statute §627.428 did not preclude an award of attorney’s fees to an insurance company under §768.79 Fla. Stat. Weesner is not controlling to the facts of this case and can be distinguished because it was not a claim under the PIP statute. The PIP statute was enacted to insure benefits to policy holders without regard to fault and the public policy considerations behind that enactment are not applicable to UM actions. The Weesner court did not expand its holding to actions brought for PIP benefits. Weesner involved a UM claim under an umbrella policy for liability where fault was at issue and the parties were free to contract or to reject UM coverage. As previously stated, in a claim for PIP benefits fault is not at issue and the law requires such coverage to operate a motor vehicle on the streets of our state.
Fla. R. Civ. Proc. 1.442 alone cannot be used to confer on an insurance company substantive rights to a attorney’s fees under the PIP statute. In Timmons v. Coombs, 608 So.2d 1 (Fla. 1992), the court recognized that the circumstances under which a party is entitled to costs and attorney’s fees is a matter of substantive law. Although a statute must defer to a role on a procedural matter, this does not apply to matters of substantive law.
Based upon the foregoing reasons, this Court finds that the Plaintiff’s Motion to Strike the Offer of Judgment must be granted.
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