6 Fla. L. Weekly Supp. 180b
Insurance — Personal injury protection — Attorney’s fees — Proposal for settlement/offer of judgment statute does not apply to actions for PIP benefits — Question certified — Motion for attorney’s fees filed by prevailing insurer whose proposal for settlement was rejected by insured is denied — Fact that motion to strike insurer’s proposal for settlement/offer of judgment was not filed until after jury verdict does not alter court’s decision regarding award of attorney’s fees to insurer
Liliana Cahuasqui, Plaintiff, vs. U.S. Security Ins. Co., Defendant. County Court in and for Dade County, Civil Division. Case No. 96-10506 CC 05 (02). November 19, 1998. Linda Dakis, Judge.
Reversed; certified question answered in the affirmative at 25 Fla. L. Weekly D1666f
ORDER DENYING DEFENDANT’S MOTION FOR ATTORNEY’S FEES
This cause came before the Court on the Defendant’s Motion for Attorney’s Fees and after hearing argument of counsel, reviewing appellate and county court decisions rendered in Miami-Dade County and being fully advised in the premises, the court finds:
1. This action was initiated for personal injury protection benefits sought by plaintiff who was involved in an automobile accident on October 3, 1995.
2. The defendant filed a Proposal for Settlement/Offer of Judgment on June 19, 1997 which was not accepted by the Plaintiff. The plaintiff did not file a Motion to Strike the Proposal of Settlement/Offer of Judgment until June 4, 1998, well after the Special Interrogatory Jury Verdict rendered August 26, 1997.
The court has reviewed the many County Court decisions e.g. Cruz vs. Allstate Ins. Co., 5 Fla. L. Weekly Supp. 303 (11th Judicial Circuit, 11/12/97) and Holcomb vs. Fortune Ins. Co., 4 Fla. L. Weekly Supp. 479 (11th Jud. Circuit 7/26/96) as well as appellate decisions rendered in State Farm vs. Marko, 695 So. 2d 874 (Fla. 2 DCA 1997) and Weesner vs. United Services Automobile Association, 711 So. 2d 1192 (Fla. 5 DCA 1998). Both appellate decisions involve first party actions for uninsured motorist benefits where fault at issue and are distinguished by the Honorable Bonnie Rippingale in her Order dated 11/12/98. See, Bernardo Ramirez vs. U.S. Security Insurance Company, Case No. 98-2331 CC 26 (02) [6 Fla. L. Weekly Supp. 179b]. That order further discusses general versus specific statutory construction, legislative intent and public policy concerns in PIP actions and the resolution of conflict between promulgated rules and statutes. It specifically addresses the use of Proposal for Settlement/Offer of Judgment, F.S. 768.79, in actions for personal injury protection benefits and the impact of Rule 1.442, Florida Rules of Civil Procedure, on a potential award of attorney’s fees to the defendant insurance company. This Court adopts that opinion. Accordingly, the Motion for Attorney’s Fees is respectfully denied and should be reduced to a final order.
The court finds the Special Interrogatory Jury Verdict dated August 26, 1997 indicated the defendant’s insurance company was clearly the prevailing party. The Motion to Strike the Proposal for Settlement/Offer of Judgment was not filed until June 4, 1998, well after the jury verdict. These facts do not alter the court’s opinion with regard to an award of Attorneys Fees to the defendant.
The court, pursuant to Rule 9.030(a)(4)(A), Florida Rules of Appellate Procedure, certifies the following question:
Is the Proposal for Settlement/Offer of Judgment Statute, F.S. 768.79, applicable to PIP actions?
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*The court has also read the decision of Nelson Rozalez vs. Fidelity National Ins. Co., 11th Judicial Circuit, County Court, Case No. 97-9544 dated 8/10/98 and the decisions referenced in that case.
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