6 Fla. L. Weekly Supp. 291d
Insurance — Personal injury protection — Attorney’s fees — Offer of judgment statute does not apply to insured’s first party action against PIP insurer — Motion to strike insurer’s Proposal for Settlement based on applicability of section 627.428 granted
MANUEL SANTIESTEBAN, Plaintiff, vs. FORTUNE INSURANCE COMPANY, a corporation, Defendant. County Court of the 11th Judicial Circuit in and for Dade County, Civil Division. Case No. 97-16520 CC05 (01). February 4, 1999. Shelley J. Kravitz, Judge.
ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S PROPOSAL FOR SETTLEMENT
THIS CAUSE arises out of a claim by Plaintiff, MANUEL SANTIESTEBAN, seeking personal injury protection benefits from the Defendant. In response to the Plaintiff’s claim, the Defendant, FORTUNE INSURANCE COMPANY, filed a Proposal for Settlement pursuant to Florida Statute §768.79 and Florida Rule of Civil Procedure 1.442(h). Plaintiff then filed a motion to strike the Defendant’s Proposal for Settlement. There appears to be no Florida District Court of Appeal opinion directly addressing the issue as to whether an insurance company can recover attorney’s fees pursuant to a Proposal for Settlement filed against an insured in a first party PIP suit.
After considering the arguments of counsel, the memoranda of law filed by the parties and the prior decisions of other Dade County judges, this court hereby adopts the opinion of County Court Judge Bonnie L. Rippingille in the matter of Bernardo Ramirez v. U.S. Security Insurance Company, Dade County Court Case No. 98-2331-CC-26 (02) [6 Fla. L. Weekly Supp. 179b], and adopts the order in full.
In addition to the findings of Judge Rippingille, the court herein believes it is necessary to further distinguish Weesner v. United Services Automobile Association, 711 So.2d 1192 (Fla. 5th DCA 1998). In Weesner, the court specifically found the action was not controlled by Florida Statute §627.428, because the plaintiff was attempting to create coverage where none ever existed. The court “…[r]ejected their arguments that attempt to characterize the litigation as an action for declaratory judgment….” Since applicability of Florida Statute §627.428 is a basis for Plaintiff’s motion to strike the Defendant’s Proposal for Settlement and said statutory provision was not a factor in the Weesner decision, Weesner is inapplicable to the issue before the court.
Based on the foregoing reasons, this court finds that Plaintiff’s motion to strike the Proposal for Settlement must be granted.
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