6 Fla. L. Weekly Supp. 711b
Insurance — Personal injury protection — Attorney’s fees — Plaintiff’s motion to strike insured’s proposal for settlement, which identified section 768.79 as the legal basis for the proposal, is granted — Offer of judgment statute does not apply to PIP case
LESTER C. LOCKHART, Plaintiff, v. PINNACLE INSURANCE COMPANY, a Georgia corporation, Defendant. County Court in and for Polk County. Case No. 98-SP12-4612. April 19, 1999. Timothy Coon, Judge. Counsel: William J. Corda, for Plaintiff. Lester C. Lockhart and James A. Chereskin, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S PROPOSAL FOR SETTLEMENT
This cause came on for hearing on April 1, 1999, on Plaintiff’s Motion to Strike Defendant’s Proposal for Settlement. Present were William J. Corda, Esquire, counsel for Plaintiff Lester C. Lockhart and James A. Chereskin, Esquire, counsel for Defendant Pinnacle Insurance Company. Having reviewed the Plaintiff’s Motion to Strike Defendant’s Proposal for Settlement, the Defendant’s Response to Plaintiff’s Motion to Strike, the statutory and case law cited by the parties and having listened to the arguments of counsel for the parties, the Court finds as follows:
1. This is an action for personal injury protection (PIP) benefits pursuant to Section 627.736, Fla. Stat., brought by the Plaintiff against his own insurance company for failure to pay for medical treatment following an automobile accident on July 13, 1996.
2. The Defendant filed a Proposal for Settlement pursuant to Rule 1.442 of the Florida Rules of Civil Procedure. In its Proposal for Settlement the Defendant identified Section 768.79, Florida Statutes, the Offer of Judgment Statute, as the legal basis for its Proposal for Settlement. The Plaintiff moved to strike the Defendant’s Proposal for Settlement.
3. The Plaintiff contends that in an action for PIP benefits only the insured and not the insurer can recover attorney’s fees. The Plaintiff points to the fact that in the PIP statute Section 627.736(8), Fla. Stat., incorporates the provisions of Section 627.428, Fla. Stat., which provides for attorney’s fees to an insured who successfully prevails against an insurer. The Defendant contends that the Offer of Judgment Statute, Section 768.79, Fla. Stat., is made applicable to any civil action and, therefore, an insurer should be allowed to make an offer of judgment even in a PIP case and ultimately be allowed to recover its attorney’s fees pursuant to that offer of judgment.
4. The issue to be decided by the Court is whether the Offer of Judgment Statute, Section 768.79, Fla. Stat., may be utilized by an insurer against an insured who sues for PIP benefits. This issue has been previously considered by several county courts, and the Court finds most persuasive the well-reasoned opinion of Judge Rippingille in Ramirez v. U.S. Security Insurance Company, No. 98-2331-CC-26(02), County Court in and for Dade County, November 18, 1998 [6 FLW Supp. 179]. The Court concurs with Judge Rippingille and finds that the Offer of Judgment Statute, Section 768.79, Fla. Stat., is not applicable in an action by an insured against an insurer for PIP benefits for the reasons stated herein.
5. With respect to who can recover attorney’s fees in an action for PIP benefits by an insured against an insurer, there is direct conflict between the PIP Statute, Section 627.736, Fla. Stat., and the Offer of Judgment Statute, Section 768.79, Fla. Stat. The PIP Statute in Section 627.736(8), Fla. Stat., incorporates Section 627.428, Fla. Stat., which provides for attorney’s fees for an insured who prevails against an insurer. This is a “one-way street” which allows only the insured but not the insurer to recover attorney’s fees. The Offer of Judgment Statute, Section 678.79, Fla. Stat., allows any party who satisfies its requirements to recover attorney’s fees. The Offer of Judgment Statute, Section 768.79, Fla. Stat., is general in nature applying to “any civil action for damages”. The PIP Statute, Section 627.736, Fla. Stat., is a specific statute providing for personal injury protection benefits. It is a basic rule of statutory construction that a specific statute on a subject serves as an exception to a general comprehensive statute which may include the same subject. McKendry v. State, 641 So.2d 45 (Fla. 1994). Since the Offer of Judgment Statute Section 768.79 is a general statute and the PIP Statute, Section 627.736, Fla. Stat., is a specific statute, this conflict must be resolved in favor of the PIP Statute, Section 627.736, Fla. Stat.
6. Furthermore, the Offer of Judgment Statute, Section 768.79, Fla. Stat., is contained within Part 2 of Chapter 768 entitled “Damages”. Part 2 begins with Section 768.71, Fla. Stat., entitled “Applicability; Conflicts”. Section 768.71(3), Fla. Stat., states: “If a provision of this part is in conflict with any other provision of the Florida Statutes such other provision shall apply.” Thus, Section 768.71(3), Fla. Stat., also requires that any conflict between Section 768.79 and Section 627.736 be resolved in favor of the PIP Statute.
7. Nevertheless, some county judges have felt compelled to allow an insurer to file an offer of judgment pursuant to Section 768.79, Fla. Stat., in a PIP action as a result of the recent decision of the Fifth District Court of Appeal in Weesner v. United Services Automobile Association, 711 So.2d 1192 (Fla. 5th DCA 1998) which held that Section 627.428, Fla. Stat., did not preclude a UM insurer from making an Offer of Judgment pursuant to Section 678.79, Fla. Stat. Weesner is distinguishable and not controlling. First, Weesner was a UM case and not a PIP case. The PIP Statute states in Section 627.736(8), Fla. Stat., that the provisions of Section 627.428, Fla. Stat., apply. However, the UM Statute, states in Section 627.727(8), Fla. Stat., that the provisions of Section 627.428 do not apply unless there is a dispute as to coverage. Second, in order for an insurer to pay UM benefits, there must be fault on the part of the uninsured tortfeasor. PIP benefits must be paid by an insurer to its insured regardless of fault. Third, UM coverage is elective. An insured has the option to purchase it or not. However, PIP coverage is mandatory. An insured is required to purchase it. Therefore, the Court finds that Weesner does not make the Offer of Judgment Statute, Section 768.79, Fla. Stat., applicable in a PIP case.
9. Accordingly, it is, ORDERED AND ADJUDGED that the Plaintiff’s Motion to Strike Defendant’s Proposal for Settlement is hereby granted and said Proposal is hereby stricken.
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