7 Fla. L. Weekly Supp. 804b
Insurance — Personal injury protection — Settlement — Offer — Motion to strike insurer’s proposal of settlement denied as offer of judgment statute applies to PIP cases the same as in all civil actions in which one party seeks damages from another party — Because offer of judgment statute applies to PIP actions, its companion rule of civil procedure, Rule 1.442, must necessarily apply, even though Small Claims rule 7.020(a), which identifies which Rules of Civil Procedure will necessarily apply in all small claims cases does not include Rule 1.442 — Acceptance of proposal — Enlargement of time — Plaintiff’s request for enlargement of time to accept insurer’s proposal of settlement granted — Because parties have agreed to extend time period until court rules on plaintiff’s motions, even though thirty-day period has expired, plaintiff need not show excusable neglect for court to enlarge
Med+Plus Medical Clinics, Inc., As assignee of Ginger Freebery, Plaintiff, v. State Farm Mutual Automobile Insurance Company, Defendant. County Court, 12th Judicial Circuit in and for Manatee County, Civil Division. Case No. 2000-SC-1356
ORDER ON PLAINTIFF’S MOTION TO STRIKE/MOTION FOR ENLARGEMENT OF TIME
THIS CAUSE having come on to be heard on Plaintiff’s Motion to Strike/Motion for Enlargement of Time and the Court having considered the Motion and being otherwise duly advised in the premises, finds as follows:
The Plaintiff in this case seeks an order of the court striking the Defendant’s proposal of settlement, or in the alternative, enlarging the time in which to accept the proposal. Plaintiff alleges that counsel for Plaintiff has been attempting to set the deposition of the adjuster for State Farm, but had difficulty scheduling the deposition. On August 10, 2000 the Defendant filed a proposal for settlement. Afterwards, on August 29, Defendant supplied the Plaintiff with dates for the adjuster’s deposition. The adjuster’s deposition was had on September 18, 2000. The Defendant extended the time for acceptance of the proposal until the hearing Plaintiff’s motion set for this date.
Plaintiff argues that the proposal should be stricken by the court because the Small Claims Rules do not incorporate Rule 1.442 of the Florida Rules of Civil Procedure.1 The Defendant cites the case of U.S. Security Insurance Company v. Liliana Cahuasqui, 760 So.2d 1101 (Fla. 3rd DCA 2000).
The Court is inclined to agree with the rationale of the Cahuasqui decision. Section 768.79(1) begins as follows… “In any civil action for damages filed in the courts of this state….” The language of the statute is clear on its face and unambiguous. Although the offer of judgment provision is found in Chapter 768, the Fourth District held that recovery under § 768.79 is not limited to actions in negligence. The Court stated that “there is no ambiguity in the words, “in any civil action for damages.” The plain and ordinary meaning of these words is to cover any claim by a party in a civil action in which money damages are sought from another party to the action. They convey a clear meaning sweeping in all civil actions in which one party seeks damages from another party. The right to damages may arise under tort law; it may arise under contract law; it may arise under property law. If the party seeks damages from another party, then the claim is covered by section 768.79’s broad phrase, `civil action for damages.’ ” Beyel Brothers Crane and Rigging Company of South Florida, Inc. v. Ace Transportation, Inc., 664 So.2d 62, 64 (Fla. 4th DCA 1995).
The purpose of the offer of judgment statutes is to coerce settlement of claims by forcing the parties, at the risk of being assessed attorney’s fees, to take a realistic look at the claims after some discovery has been had. As the Cahasqui court stated, “The fact that an insurance carrier has defenses against a claim for PIP benefits obviously shows that PIP litigation is not a one-sided affair. Thus, the offer of judgment statute’s policy of encouraging settlements clearly applies in disputed PIP cases the same as in other civil action for damages. Indeed, we find that the early resolution of PIP claims, by way of offers of judgment, is entirely consistent with the intent of the no-fault legislation of relieving our overburdened court system.” Cahasqui at 1105.
Based on the foregoing, this Court holds that § 768.79 applies to PIP cases and therefore, Plaintiff’s Motion to Strike must be denied. Additionally, because the offer of judgment statute applies to PIP actions, its companion rule of civil procedure must necessarily apply also. Small Claims rule 7.020(a), which identifies which Rules of Civil Procedure will necessarily apply in all small claims cases does not include Rule 1.442. However, in light of the Cahasqui decision, the Court concludes that the Rule must necessarily apply. The Court invokes subsection (c) of Small Claims Rule 7.020 to facilitate the applicability of Rule 1.442 to PIP cases in small claims court.
The next question is whether the Court has the power, and whether the Court should, enlarge the time for acceptance of State Farm’s proposal for settlement.
Plaintiff requests an enlargement of time pursuant to Rule 1.090 of the Florida Rules of Civil Procedure.2 Rule 1.090(b) provides as follows:
(b) Enlargement. When an act is required or allowed to be done at or within a specified time by order of court, by these rules, or by notice given thereunder, for cause shown the court at any time in its discretion (1) with or without notice, may order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made and notice after the expiration of the specified period, may permit the act to be done when failure to act was the result of excusable neglect, but it may not extend the time for making a motion for new trial, for rehearing, or to alter or amend a judgment; making a motion for relief from a Judgment under rule 1.540(b); taking an appeal or filing a petition for certiorari; or making a motion for a directed verdict.
In addressing the time limitations in Florida Statute § 768.79, the Supreme Court of Florida has stated that “we agree with the First District in Gilbert (Gilbert v. K-Mart Corp., 664 So.2d 335 (Fla. 1st DCA 1995)), and hold that the time periods in these statutes are procedural and are governed by the Florida Rules of Civil Procedure. Consequently, we hold that these periods may be enlarged under Florida Rule of Civil Procedure 1.090(b). See Gilbert, 664 So.2d at 339. This rule allows a court to enlarge a time period prescribed by the rules for cause shown (1) with or without notice if the request is made before the expiration of the period originally prescribed, or (2) subject to limited exceptions, with notice upon motion made after the expiration of the period if the failure to act was the result of excusable neglect.” Gulliver Academy, Inc. v. Bodek, 694 So.2d 675, 676-77 (Fla. 1997).
In the instant case, the parties have agreed to extend the time period until this court rules on the plaintiff’s motions, even though the thirty-day period has expired. Therefore, the Plaintiff need not show excusable neglect for the Court to enlarge the time.
Accordingly, and in deference to the underpinnings of the offer of judgment statute, the Court grants the Plaintiff’s request for enlargement of time to accept State Farm’s proposal of settlement. The time period will be extended for a period of thirty days beginning the day after the deposition of the adjuster in this cause. Accordingly, it is
ORDERED AND ADJUDGED that Plaintiff’s Motion to Strike is Denied: Plaintiff’s Motion for Enlargement of Time is granted. Plaintiff shall have thirty days from the day after the taking of the adjuster’s deposition to accept the proposal of settlement.
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1At the Pre-trial Conference, the Court denied the Defendant’s motion for applicability of the Florida Rules of Civil Procedure.
2Small Claims Rule 7.020 makes Rule 1.090 of the Florida Rules of Civil Procedure applicable to small claims.
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