7 Fla. L. Weekly Supp. 231a
Insurance — Appeals — Non-final order denying motion to strike insurer’s proposal for settlement made pursuant to rule 1.442 and section 768.79 — Section 768.79 applies to all civil actions for damages — Order does not create material harm irreparable by post-judgment appeal — Petition for review dismissed
BETTY L. HEFNER, Appellant/Petitioner, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee/Respondent. 6th Judicial Circuit in and for Pinellas County, Appellate Division. Case No. 99-479-CI-88A. January 12, 2000. Charles W. Cope, Judge. Counsel: William K. Saron, Saron & Eisenstadt, St. Petersburg, for Petitioner. Michael H. Ashy and David G. Henry, Santos, Dutton, Lynott & Henry, Tampa, for Respondent.
ORDER DISMISSING PETITION FOR WRIT OF CERTIORARI
This cause came before the Court on Betty L. Hefner’s Petition for a Writ of Certiorari to review a non-final order denying her Motion to Strike a Proposal for Settlement that was made pursuant to Rule 1.442, Florida Rules of Civil Procedure and Section 768.79, Florida Statutes. The Court having reviewed the file and being otherwise advised in the premises, dismisses the Petition.
A nonfinal order, for which no appeal is provided by statute, will be reviewed by certiorari only where the order departs from the essential requirements of law and causes material injury to the petitioner throughout the remainder of the proceedings. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla. 1987); Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646 (Fla. 2d DCA 1995).
Petitioner argues that the Order denying her Motion to Strike the Proposal for Settlement is a departure from the essential requirement of law because there is a conflict between Section 627.428, Florida Statutes, and Section 768.79, Florida Statutes, governing the award of attorney’s fees. Petitioner argues that she is entitled to a judicial determination as to the Offer of Judgment prior to its effect being triggered by expiration. Petitioner further argues that she will suffer irreparable harm if the Offer of Judgment is allowed to expire without a judicial determination as to its propriety and the propriety of including attorney’s fees as a condition of settlement, because she will have already assumed the risk if she loses a subsequent appeal on the issue.
Section 768.79 applies to all civil actions for damages. Beyel Brothers Crane & Rigging Co. of South Florida, Inc. v. Ace Transportation, Inc., 664 So.2d 62 (Fla. 4th DCA 1995); Oruga Corp. v. AT&T Wireless of Florida, Inc., 712 So.2d 1141 (Fla. 3d DCA 1998). The statute contains no exception for PIP cases. While the PIP statute provides for attorney’s fees to prevailing insureds, it does not prohibit insurance companies from using the Offer of Judgment Statute. Courts of this state are without the power to construe unambiguous statutes in a way, which would extend, modify, or limit their express terms or their reasonable and obvious implications. To do so would be an abrogation of legislative power. Oruga Corp. v. AT&T Wireless of Florida, Inc., 712 So.2d at 1144, Citing, Holly v. Auld, 450 So.2d 217 (Fla. 1984).
In Weesner v. United Services Automobile Association (USAA), 711 So.2d 1192 (Fla. 5th DCA 1998), the court rejected the Weesners’ argument that Section 627.428, Florida Statutes, precludes attorney’s fees to an insurance carrier under Section 768.79, Florida Statutes. USAA had offered one hundred dollars to settle a claim for uninsured motorist protection under an umbrella policy.
In DeSalvo v. Scottsdale Insurance Co., 705 So. 2d 694 (Fla. 1st DCA 1998), the insurance company made an offer of settlement that included taxable costs and attorney’s fees. The court stated that the purpose of the offer of settlement statute is to ensure that an insured or beneficiary cannot continue to incur attorney’s fees and costs after a legitimate offer of settlement. The failure to recover more than an offer of settlement does not mean that an insured that is awarded some recovery is precluded from being awarded any portion of their attorney’s fees and costs. The insured or beneficiary is only precluded from recovering attorney fees and costs incurred after the filing of the offer of settlement. The offer of settlement, by operation of law, included all damages, attorney’s fees, taxable costs and prejudgment interest, which would be included in a final judgment if the final judgment was entered on the date of the settlement. The Florida Supreme Court has approved the holding of the First District in an opinion that has not yet been released for publication. Scottsdale Insurance Co. v. DeSalvo, 1999 WL 731659, 24 Fla. L. Weekly S422 (Sept. 9, 1999).
On a petition for a writ of certiorari, an appellate court must conduct a jurisdictional analysis prior to testing whether a nonfinal order passes the standard of review on its merits. Petitioner must establish that the interlocutory order falls within one of the authorized categories of Rule 9.130, Florida Rules of Appellate Procedure, before this court has the power to review the merits of the nonfinal order by appeal. The Petitioner must also establish that the interlocutory order creates material harm irreparable by post judgment appeal before this court has the power to determine whether the order departs from the essential requirements of law. If the jurisdictional standards are not fulfilled, the petition should be dismissed rather than denied. Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646 (Fla. 2d DCA 1995).
The non-final order denying Petitioner’s Motion to Strike a Proposal for Settlement may not necessarily cause any material injury during the remainder of the proceedings. Even if the trial court’s decision is erroneous, the matter can be remedied on postjudgment appeal. It is, therefore,
ORDERED that the Petition for Writ of Certiorari is dismissed.
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