6 Fla. L. Weekly Supp. 797a
Insurance — Personal injury protection — Attorney’s fees — Insured’s motion to strike insurer’s proposal for settlement/demand for judgment is granted — Insurer may not file an effective offer of settlement in a first-party lawsuit for benefits under PIP policy — Inclusion of insured’s attorney’s fees in offer diminishes protection afforded insured and provides additional basis for striking offer
FRANCIS P. NATALE, Plaintiff, v. ALLSTATE INDEMNITY COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Brevard County. Case No. 98-20422-CC-4. September 1, 1999. David E. Silverman, Judge. Counsel: Hubert C. Childress, Jr., Melbourne, for Plaintiff. Christopher A. Layman, Turner Law Firm, L.L.C., Melbourne, for Defendant.
ORDER
This cause came before the Court on the 25th day of August, 1999 on the plaintiff’s Motion to Strike Offer of Settlement, and the Court having received and reviewed the said motion, the pleadings and other filings including, without limitation the Notice of Filing Supplemental Authority and Memorandum filed by defendant, and the Court having been otherwise advised in the premises,
The Court hereby finds as a matter of fact and concludes as a matter of law:
The issue of whether an insurer may file an effective offer of settlement in a first-party lawsuit for benefits under a personal injury protection policy of insurance. This issue was directly addressed by the Circuit Court of the Eighteenth Judicial Circuit in its appellate capacity in the case of Alice Carver v. Dairyland Insurance Company, Appellate Case No. 98-17504-AP.
This Court adopts the analysis of the well-reasoned opinion by Judge Moxley in that case.
There are only two additional points this Court would like to address.
1. Inclusion of Plaintiff’s Attorney Fees
This might have been a closer issue if the insurer hadn’t included plaintiff’s attorney’s fees in the offer.
The insurer’s proposal for settlement offers,
“[t]he sum of ONE HUNDRED and NO/100 DOLLARS ($100.00) to the Plaintiff, FRANCIS P. NATALE, inclusive of costs and attorneys fees ($50.00 for payment of PIP benefits and medical bills sued upon, and $50.00 for payment of attorney fees and costs)”
The inclusion of attorney’s fees diminishes the protection afforded the insured by providing for the recovery of such fees upon prevailing. This is an additional basis for striking the offer.
Recovery of attorneys fees in PIP cases has been characterized as a one-way street running in favor of the insured. See, Danis Industrial Corp. v. Ground Improvement Techniques, 645 So.2d 420 (Fla. 1994). Including attorneys fees in the offer would tend to bring the plaintiff’s road to recovery of attorneys fees to a dead end by inviting plaintiffs to settle such claims without adequate provision for attorneys fees.
The only way by which reasonable attorney’s fees could be had, in accordance with the statute, would be to reject the offer and continue the litigation. Thus, an offer for settlement, at least one that includes attorneys fees, would have the effect of complicating and prolonging litigation, contrary to the public policy underlying such offers.
This situation is analogous to Wollard v. Lloyd’s and Companies of Lloyd’s, 439 So. 2d 217 (Fla. 1983), where the court held that the settlement of a disputed case is the functional equivalent of a confession of judgment or verdict in favor of the insured, and thus, provides a basis for an award of attorney fees pursuant to statute. The trial court in that case had awarded Wollard attorney’s fees; however, the district court reversed stating as a controlling rule of law: “A negotiated settlement between an insured and his insurer does not entitle the insured to attorney’s fees pursuant to Section 627.428, Florida Statutes (1979).” Wollard, 439 So. 2d at 218. The Florida Supreme Court disagreed stating:
“When the insurance company has agreed to settle a disputed case, it has, in effect, declined to defend its position in the pending suit. Thus, the payment of the claim is, indeed, the functional equivalent of a confession of judgment or a verdict in favor of the insured. Requiring the plaintiff to continue litigation in spite of an acceptable offer of settlement merely to avoid having to offset attorney’s fees against compensation for the loss puts an unnecessary burden on the judicial system, fails to protect any interest — the insured’s, the insurer’s or the public’s — and discourages any attempt at settlement. This literal requirement of the statute exalts form over substance to the detriment of public policy, and such a result is clearly absurd. It is a basic tenet of statutory construction that statutes will not be interpreted so as to yield an absurd result. Dorsey v. State, 402 So.2d 1178 (Fla. 1981); State v. Webb, 398 So.2d 820 (Fla. 1981); Austin v. State ex rel. Christian, 310 So.2d 289 (Fla. 1975).”
It is difficult to square Wollard’s interpretation of the statute as entitling insureds to attorneys fees upon a settlement, with the insurer’s offer of settlement that virtually precludes attorneys fees in this case. And while structuring an offer to avoid running afoul of the requirement that the offer of judgment, “state the total amount of the offer,” does not alter its effect of impairing an insured’s entitlement to attorneys fees in PIP cases. See, Section 768.79(2)(d), Florida Statutes and of State Farm Life Insurance Co. v. Bass, 605 So.2d 908 (3rd DCA 1992), for the form of such an offer.
2. Reevaluation of Weesner
The position taken by the Circuit Court in Carver regarding Weesner v. United Services Automobile Association, 711 So.2d 1192 (5th DCA 1998) was reinforced by an examination of the plaintiff/appellants’ briefs in that case. The opinion in Weesner rejected positions taken by the insureds, stating,
“We also reject their arguments that attempt to characterize the litigation as an action for a declaratory judgment and that section 627.428, Florida Statutes, precludes attorney’s fees to an insurance carrier under section 768.79, Florida Statutes.”
The table of contents of plaintiff/appellant’s initial brief in Weesner made no reference to the offer of settlement, focusing solely on summary judgment issues. Their reply and answer as cross-appellees challenged the offer of settlement on the basis that it was not made in “good faith” and that Section 768.79, Florida Statutes, “does not apply to declaratory judgment actions,” as the plaintiffs then sought to characterize their uninsured motorist claim. Weesner v. United Services Automobile Association, Case No. 97-620, Fifth District Court of Appeals, State of Florida, Appellants’ Reply Brief and Answer Brief on Cross-Appeal, p. 20.
From the briefs we can be assured that those rejected arguments did not include any argument regarding the statutory conflict between Section 627.428 and Section 768.79 or any of the principles of law expressed by Judge Moxley in Carver. Only by drawing Weesner’s language out of context can it be suggested that it has any application.
It is, therefore, hereby ORDERED and ADJUDGED as follows:
The plaintiff’s Motion to Strike Proposal for Settlement/Demand for Judgment is hereby granted and the said proposal and offer of settlement is stricken and without force or effect.
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