7 Fla. L. Weekly Supp. 212a
Insurance — Personal injury protection — Attorney’s fees — Offer of judgment — Offer of judgment statute, which provides that either plaintiff or defendant in civil lawsuit for damages can recover its attorney’s fees and costs, conflicts with PIP statute, which provides that only insureds and not insurers can recover their attorney’s fees and costs, when both statutes are attempted to be applied to PIP lawsuit — Conflict must be resolved in favor of PIP statute — If insurer files offer of judgment in PIP case, insured my procedurally move to strike offer without having to wait for unfavorable judgment or for insurer to attempt to seek attorney’s fees and costs pursuant to its offer of judgment — To allow insurer to file an offer of judgment in PIP case and to delay ruling when insured moves to strike offer of judgment would have chilling effect upon insured’s pursuit of statutory right to PIP benefits
ANITA SMITH, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois corporation, Defendant. County Court, 10th Judicial Circuit in and for Polk County. Case No. 99-SP-12-2025. December 21, 1999. Timothy Coon, Judge. Counsel: William J. Corda, Lakewood, for Plaintiff. Gerard P. Duignan, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S OFFER OF JUDGMENT
This cause came on for hearing on November 22, 1999, on Plaintiff’s Motion to Strike Defendant’s Offer of Judgment. Present were William J. Corda, Esquire, counsel for Plaintiff and Gerard P. Duignan, Esquire, counsel for Defendant. Having reviewed the Plaintiff’s Motion to Strike Defendant’s Offer of Judgment, the authorities cited by counsel and having listened to the arguments of counsel, 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 Anita Smith (hereinafter “Smith”) against Defendant State Farm Mutual Automobile Insurance Company (hereinafter “State Farm”) for failure to pay for medical treatment following an automobile accident on May 18, 1997.
2. State Farm has filed an Offer of Judgment pursuant to Rule 1.442 of the Florida Rules of Civil Procedure and Section 768.79, Florida Statutes, the Offer of Judgment Statute. Smith has moved to strike State Farm’s Offer of Judgment.
3. Both Smith and State Farm have provided this Court with opinions from Circuit Courts sitting in their appellate capacity which have ruled both ways as to whether an insurer can file an Offer of Judgment against its own insured in a PIP case. See Alice Carver v. Dairyland Insurance Company (Circuit Court of the Eighteenth Judicial Circuit, Appellate Case No. 98-17504-AP) and Robin J. Bell v. State Farm Mutual Automobile Insurance Company (Circuit Court of the Sixth Judicial Circuit, Appellate Case No. 97-5590CI-88B). The Circuit Court for the Tenth Judicial Circuit In and For Polk County has not ruled on this issue nor has any District Court of Appeal. This Court has previously ruled that an insurer cannot file an Offer of Judgment against its own insured in a PIP case. See Lockhart v. Pinnacle Insurance Company, 6 Fla. L. Weekly Supp. 711 (County Court in and for Polk County, April 19, 1999).
4. In this case State Farm makes additional arguments that merit further consideration and discussion by this Court. First, State Farm argues that there is no conflict between the Offer of Judgment Statute and the PIP Statute because the Offer of Judgment Statute is made applicable to any civil action for damages which would include PIP lawsuits. If the legislature had intended to exclude PIP lawsuits from the applicability of the Offer of Judgment Statute, it could have done so but chose not to. State Farm also argues that Smith’s Motion to Strike is premature because State Farm has not yet obtained a judgment nor moved for attorney’s fees and costs pursuant to its Offer of Judgment. State Farm contends that only after it has obtained a favorable judgment and moved for attorney’s fees and costs pursuant to its Offer of Judgment can Smith procedurally move to strike its Offer of Judgment.
5. In response to State Farm’s arguments, Smith points out that there was no reason for the legislature to specifically exclude PIP lawsuits from the application of the Offer of Judgment Statute because Section 768.71(3) provides that “If a provision of this part is in conflict with any other provision of the Florida Statutes, such other provision shall apply.” Smith turns State Farm’s argument around and says that if the legislature wanted the Offer of Judgment Statute to take priority over every other statute it certainly could have done but chose not to. As to State Farm’s procedural argument, Smith responds that due to the vastly disparate financial positions of State Farm and Smith, if Smith is not permitted to immediately challenge the Offer of Judgment it would have a chilling effect upon Smith’s pursuit of her PIP benefits. This Court finds Smith’s arguments more persuasive.
6. The Offer of Judgment Statute is a general Statute which provides a two-way street whereby either Plaintiff or Defendant in a civil lawsuit for damages can recover its attorney’s fees and costs. The PIP Statute is a specific Statute which provides a one-way street whereby only insureds and not insurers can recover their attorney’s fees and costs. Clearly these Statutes conflict when both are attempted to be applied to a PIP lawsuit. Section 768.71(3), Fla. Stat. as well as the basic rules of statutory construction require that this conflict be resolved in favor of the PIP Statute.
7. If an insurer files an Offer of Judgment in a PIP case, the insured may procedurally move to strike it without having to wait for an unfavorable judgment or for the insurer to attempt to seek attorney’s fees and costs pursuant to its Offer of Judgment. The purpose of making attorney’s fees a one-way street in a PIP case is to encourage fair and prompt payment of PIP benefits by insurers. To allow an insurer to file an Offer of Judgment in a PIP case and to delay ruling when the insured moves to strike it would have a chilling effect upon the insured’s pursuit of the statutory right to PIP benefits.
8. Accordingly, it is, ORDERED AND ADJUDGED that the Plaintiff’s Motion to Strike Defendant’s Offer of Judgment is hereby granted and said Offer of Judgment is hereby stricken.
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