7 Fla. L. Weekly Supp. 270a
Attorney’s fees — Offer of judgment — Insurance — Personal injury protection — Motion to strike insurer’s proposal for settlement filed pursuant to rule 1.442 and section 768.79 granted — Attorney’s fees provisions of section 768.79 do not apply to actions to enforce PIP claims, which are governed by specific provisions of section 627.428
BRENDA RUTH AND HERBERT RUTH, her husband, Plaintiffs, v. JOHN ERIC HIGGINS AND ALLSTATE INDEMNITY COMPANY. Circuit Court, 12th Judicial Circuit in and for Manatee County, Civil Division. Case No. 1999 CA 3206. January 31, 2000. Scott M. Brownell, Judge. Counsel: David Becker, Bradenton, for Plaintiff. Rob K. Roy, St. Petersburg.
ORDER STRIKING PROPOSAL FOR SETTLEMENT
Upon Motion To Strike filed by the Plaintiff, and after argument of counsel the court grants the motion and strikes the Defendant’s Proposal for Settlement.
Plaintiff’s Negligence complaint, filed in circuit court, includes a claim for PIP damages. To this claim Defendant filed a Proposal for Settlement pursuant to Fla.R.Civ.Pro. 1.442 and Fla. Stat. 768.79. Plaintiff has moved to strike the Proposal arguing that insurers are not entitled to such relief in PIP cases.
Fla. Stat. 627.01 et seq. addresses the matter of insurance contracts generally and Fla. Stat. 627.428 specifically governs actions to enforce PIP claims. This section provides that if the insured prevails, the insured is entitled to an award of attorneys’ fees. There is no corresponding provision allowing insurers to recover fees.
Defendants cite Fla. Stat. 768.79 as authority for their claim. This section provides for the award of attorney’s fees to any party in any civil action. Defendant insurer argues that this Offer of Judgment section of the Negligence statute applies, providing the basis for the insurer’s claim for PIP fees.
The Plaintiff’s contention is that the statutes conflict and that the more specific statute governs the more general. The court does not agree that they conflict but they do create confusion as follows: Fla. Stat. 768.01 et seq. Florida’s Negligence statute grants the right to recover attorney’s fees to insurers and insureds, indeed to all civil litigants. On the other hand, Fla. Stat. 627.428, a statute which governs insurance contracts, grants the right to recover fees only to insureds. The latter provision is a “one way street offering the potential for attorneys fees only to the insured. . . .” Moritz v. Hoyt Enterprises, 604 So.2d 807, (Fla. 1992). The well-established public policy underlying this provision is “to discourage insurers from contesting valid claims and to reimburse successful policy holders forced to sue on their policies. . . .” The Legislature has never announced a public policy of any kind for the protection of the insurer as it relates to insurance contracts or to PIP protection. That absence speaks volumes about the intent of the PIP statute.
One might argue that legislative silence on the matter of an insurer’s fees in PIP cases allows another, more general statute to fill the void. Just the opposite is true. The legislature, in granting insureds the right to attorneys’ fees in PIP cases has effectively modified every insurance contract to include such a clause. PIP actions are not negligence cases, they are contract actions. The terms of a contract normally dictate the damages to be recovered. In this case the Legislature went out of its way to amend PIP contracts by adding a fee provision that aids only one party to the contract and for the clear reasons stated above.
In the absence of a provision to aid the other contracting party, the insurer, they rejected the notion that PIP contracts need more tinkering and legislative amending. Thus the right created was exactly what it was meant to be, and no more. Therefore, in the absence of any legislative intent to protect the insurer, the absence of an insurer’s attorneys fee provision in the PIP statute, an insurance contract statute means the legislature meant that there not be one. The creation of an attorneys’ fee entitlement in civil actions generally, placed in the negligence statute suggests strongly that one was not meant to correct the other, only that one was not written with the other in mind.
The Florida Statutes are written by many hands over many sessions with many policies in mind. Inevitably, in spite of the best efforts of the legislature, statutes can be passed that appear to conflict. This is the reason for rules of statutory construction. When confusion arises we are to be guided by such rules. So, even though the court does not see these statutes as conflicting, there is a rule of statutory construction, which resolves the matter with the same result. In apparent statutory conflicts, specific statutory provisions with narrow focus control over general statutory provisions with broad focus. McKendry v. State, 641 So.2d 45 (Fla. 1994). Fla. Stat. 768.79 is very broadly written and applies to “all civil actions.” Fla. Stat. 627.428 is much narrower as it applies only to PIP cases. Based on this reasoning the Motion is granted.
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