6 Fla. L. Weekly Supp. 723b
Insurance — Personal injury protection — Attorney’s fees — Plaintiff’s motion to strike insured’s proposal for settlement, pursuant to section 768.79 is granted — Offer of judgment statute does not apply to PIP case
LOUIS P. ALEXANDRE, as parent and legal guardian for PRADEL ALEXANDRE, a minor, Plaintiff/Counterdefendant, v. NEW HAMPSHIRE INDEMNITY COMPANY, Defendant/Counterplaintiff, v. MADELINE ALEXANDRE, Counterdefendant. County Court, 13th Judicial Circuit in and for Hillsborough County. Case No. 97-5734 CC, Division H. March 31, 1999. James M. Barton, II, Judge. Counsel: Rex E. Delcamp; Mark T. Tischhauser; Terence S. Moore.
ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE
THIS CAUSE coming to be heard March 4, 1999 on Plaintiff’s Motion to Strike Offer of Judgment, and the court having considered the argument presented, it is hereby ORDERED AND ADJUDGED:
1. In this case where plaintiff seeks personal injury protection (PIP) benefits, defendant served a proposal for settlement pursuant to F.S. §768.79 on November 30, 1998. While the court does not accept all of plaintiff’s argument, the court concludes that the attorney’s fee provisions of F.S. §768.79 and F.S. §627.736 are in conflict and that the PIP attorney’s fee provision must prevail.
2. The court rejects plaintiff’s argument that the proposal for settlement was not made in good faith. Contrary to plaintiff’s argument, a proposal for settlement may include or exclude an amount of attorney’s fees. Fla. R. Civ. Pro. R.1.442(c)(2)(F). Nor is a proposal for settlement not made in good faith merely because it contains only a nominal amount. Fox v. McCaw Cellular Comm. of Fla, 23 Fla. L. Weekly D2687 (Fla. 4th DCA December 9, 1998); Quest Air South, Inc. v. Weisman, 24 Fla. L. Weekly D245 (Fla. 4th DCA January 20, 1999). Finally, nothing prohibits a party from serving a proposal for settlement in order to create a right to attorney’s fees which would not otherwise exist. Lieff v. Sandoval, 24 Fla. L. Weekly D227 (Fla. 3rd DCA January 20, 1999).
3. The court’s decision is determined by the answer to a simple but difficult question, to-wit: Does F.S. §627.736(8) which incorporates the attorney’s fees statute found in F.S. §627.428 conflict with the offer of judgment statute, F.S. §768.79? If a conflict exists, F.S. §768.79 is inapplicable. F.S. §768.71(3).
While the policy considerations underlying the PIP and offer of judgment statutes are not totally inconsistent, the enforcement mechanisms contained in the two statutes are expressly at odds. In enacting the PIP and offer of judgment statutes, the Legislature has intended to minimize litigation and encourage settlements. Williams v. Gateway Ins. Co., 331 So. 2d 301, 303 (Fla. 1976); Aspen v. Bayless, 564 So. 2d 1081, 1083 (Fla. 1990).
While designed to accomplish the same purpose, the two statutes employ drastically different means. The PIP statute encourages settlement by requiring insurance companies which unsuccessfully defend a valid claim to pay the insured’s attorney’s fees. An insured who fails to establish his right to PIP benefits in court is not statutorily required to compensate the insurer’s attorney. Thus, in the PIP setting, the Legislature has created a one-way attorney’s fee street in favor of the insured.
The offer of judgment statute, on the other hand, requires any party who unreasonably rejects a good faith offer to settle a case to pay the other party’s attorney’s fees. Application of the offer of judgment statute to the PIP context would run counter to the legislative determination that only the insured may recover attorney’s fees in litigation involving the PIP statute.
4. Based on the foregoing, plaintiff’s Motion to Strike Defendant’s Proposal for Settlement is GRANTED and the proposal for settlement served November 18, 1998 is stricken.
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