7 Fla. L. Weekly Supp. 509a
Attorney’s fees — Insurance — Personal injury protection — Offer of judgment — Section 768.79 creates mandatory right to attorney’s fees once statutory requirements have been met, unless trial court finds offer was not made in good faith — Although trial court failed to make finding of bad faith, it appears it denied attorney’s fees based on concern that insurer’s offer of $250 was insufficient — Record supports determination that insurer, based on its investigation, felt it had no liability and simply made $250 offer to cover filing costs of lawsuit and to encourage settlement, which constitutes sufficient good faith basis for offer — Remand for determination of reasonable attorney’s fees and costs
ALLSTATE INSURANCE COMPANY, Defendant/Appellant, vs. SOUTHEAST DIAGNOSTIC, INC., (Patient: AGATHA HILTON), Plaintiff/Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 99-18562 CACE (05). L.T. No. 98-10807 (55). May 9, 2000. Estella M. Moriarty, Judge. Counsel: Stacy Giulianti, Zebersky & Giulianti, P.A., Plantation, for Appellee. Steven W. Kuveikis, Green, Murphy, Wilke & Murphy, P.A., Boca Raton, for Defendant. Jacqueline G. Emanuel, Riley, Knoerr & Emanuel, P.A., Ft. Lauderdale, for Appellant.
OPINION
THIS CAUSE comes before this Court, sitting in its appellate capacity, upon Appellant, Allstate Insurance Company’s, direct appeal from a final order denying entitlement to attorney’s fees. The Court having read the briefs submitted in this case, reviewed the court file, applicable law, and being otherwise fully advised in the premises, hereby finds and concludes:
This case arises from a claim for personal injury protection benefits, filed by Appellee, Southeast, a diagnostic company, that performed certain medical tests on Appellant, Allstate’s insured, Agatha Hilton, who was involved in an automobile accident. Appellant denied payment of those medical tests performed by Appellee. Appellant filed an Offer of Judgment pursuant to Florida Rules of Civil Procedure 1.442 and F.S. §768.79, in the amount of $250 inclusive of attorney’s fees and costs. The case proceeded to trial and was heard in a jury trial before the Honorable Jerry Pollock on June 7, 1999. On June 8,1999, the jury returned a zero verdict and final judgment was entered in favor of the Defendant/Appellant on June 22, 1999. A hearing on Defendant/Appellant’s Motion for Attorney’s Fees and Costs was heard on October 1, 1999. The Motion was summarily denied. No specific finding of bad faith was made in the trial judge’s Order dated October 1, 1999. A Motion for Rehearing was also later denied. This appeal followed.
The case law is very clear that §768.79 creates a mandatory right to attorney fees once the statutory requirements set forth in that section have been met. “[T]he statute creates a mandatory right to attorney’s fees when the statutory prerequisites have been fulfilled: i.e. (1) when a party has served a demand or offer for judgment, and (2) that party has recovered a judgment at least 25 percent more or less than the demand or offer.” Dvorak v. TGI Friday’s, Inc., 663 So. 2d 606, 611 (Fla. 1995), approving, Schmidt v. Fortner, 629 So. 2d 1036, 1040 (Fla. 4th DCA 1993). “Section 768.79 does not give the trial court discretion to deny attorney’s fees once the prerequisites of the statute have been fulfilled, except where the court determines, under section 768.79(7)(a) that an `offer was not made in good faith” Schmidt at 1040. Accordingly, only with a competent finding of bad faith may the trial court deny attorney’s fees after the statutory prerequisites have been met under §768.79.
The determination of whether an offer was made in good faith is a very fact-specific inquiry. “We stress that the question of good faith in making an offer under section 768.79 involves an inquiry into the circumstances shown by the entire record on the case. Each case requires its own analysis and must be considered on its own facts. Whether an offer was made in bad faith involves a matter of discretion reposed in the trial judge to be determined from the facts and circumstances surrounding the offer.” Fox v. McCaw Cellular Comm. of Florida, 745 So. 2d 330, 333 (Fla. 4th DCA 1998). Because of this fact-specific approach, Florida courts have held that even a nominal offer of one dollar ($1) was made in good faith. See State Farm v. Marko, 695 So. 2d 874 (Fla. 2nd DCA 1997), and that an offer of one hundred dollars ($100) was made in good faith. See Allstate Ins. Co. v. Silow, 714 So. 2d 647 (Fla. 4th DCA 1998), and on the other hand, in Eagleman v. Eagleman, 673 So. 2d 946 (Fla. 4th DCA 1996) the Fourth District Court of Appeals held that an offer of one hundred dollars ($100) was not made in good faith.
In the case at bar, the trial judge failed to make any specific findings as to exactly what conduct on the part of the Appellant constituted bad faith. In fact, the trial court failed to make a finding of bad faith entirely. Taking the record as a whole, it appears that the lower court was concerned that the Appellant’s offer of $250 was insufficient. However, there is support in the record that the Appellant, based upon its own investigation, felt that it had no liability in this case and simply made the offer of $250 to the Appellee to cover the filing costs of the lawsuit and to encourage settlement. That constitutes a sufficient good faith basis for the offer.
Accordingly, it is
ORDERED AND ADJUDGED that the Appellant is entitled to reasonable attorney’s fees and costs.
IT IS FURTHER ORDERED AND ADJUDGED that this case is hereby reversed and remanded to the trial judge for a determination of reasonable attorneys fees and costs.
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