7 Fla. L. Weekly Supp. 251b

Attorney’s fees — Offer of judgment — Insurance — Personal injury protection — Acceptance of offer of judgment silent as to fees does not preclude accepting party from pursuing statutory or other entitlement to fees — Trial court abused its discretion in declining to award attorney’s fees to insured

PERRY MOORE, Plaintiff/Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant/Appellee. 13th Judicial Circuit in and for Hillsborough County, Civil Division. Appellate Case No. 99-02053. Case No. 96-101190-CC-1, Division E. December 13, 1999. Robert H. Bonanno, Judge. Counsel: Wendy Coxhead, Tampa, for Appellant. Karen A. Barnett, Tampa, for Appellee.

OPINION REVERSING AND REMANDING ORDER DENYING PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND COSTS

THIS CAUSE came before the Court on appeal from an Order Denying Plaintiff’s Motion For Attorney’s Fees and Costs dated February 23, 1999. The Court has reviewed the briefs of both Appellant and Appellee, carefully considered the arguments of Appellant and Appellee, and is otherwise fully advised of the premises.

Appellant, PERRY MOORE (“Appellant”), filed a breach of contract lawsuit for Personal Injury Protection benefits pursuant to §627.736, Florida Statutes, against STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (“Appellee”), for denial of benefits. In addition, Appellant pled his statutory entitlement to attorney’s fees and costs pursuant to § 627.428, Florida Statutes. On August 12, 1996, Appellee served Appellant with an Offer of Judgment pursuant to §768.79, Florida Statutes, for the sum of $250.00, which was silent as to attorney’s fees. Appellant did not accept that Offer of Judgment, and it subsequently expired.

On July 21, 1997, Appellee made an oral offer to settle which renewed the prior Offer of Judgment, subject to the same terms and conditions of the prior Offer of Judgment, however, increasing the sum to $500.00. Appellant faxed a confirmation of the offer and its terms to Appellee. On August 13, 1997, Appellant filed an “Acceptance of Renewed Offer of Judgment”. Subsequently, Appellant filed his Motion to Tax Attorney Fees and Costs. Appellee then refused to tender any money to Appellant claiming that there is a dispute as to the agreed terms and conditions of the written and confirmed settlement offer.

Appellant then filed a Motion to Enforce Settlement Agreement (“Motion to Enforce”). On October 9, 1997, the trial court heard oral arguments on Appellant’s Motion to Enforce, and the trial court granted Appellant’s Motion to Enforce Settlement Agreement finding that the renewed Offer of Judgment and its acceptance were valid and subject to all terms and conditions of the prior expired Offer of Judgment filed August 12, 1996, and that the execution of a “standard” STATE FARM release was required under the Offer of Judgment. The trial court further announced that should the standard STATE FARM release referenced in the prior Offer of Judgment contain language waiving attorney fees and costs, that will control the pending issue regarding PERRY MOORE’S entitlement to statutory attorney fees and costs.

However, the “standard” STATE FARM release drafted by counsel¹ for STATE FARM and presented to Appellant was silent as to attorney fees and costs or the waiver of such. Subsequently, Appellant executed and tendered the release to Appellee and reasserted his entitlement to attorney fees and costs pursuant to §627.428, Florida Statutes. Thereupon, Appellee objected claiming that the “standard” release drafted by counsel for Appellee erroneously omitted a condition waiving attorney fees and costs. Appellee then drafted and presented Appellant with a second, amended release, containing a condition waiving attorney fees and costs.

On June 4, 1998, the lower court set aside the first “standard” release claiming that STATE FARM’S omission of the condition waiving attorney fees and costs constituted excusable neglect. On January 14, 1999, the trial court held an evidentiary hearing to determine whether STATE FARM’S “standard” release form contained the condition waiving attorney fees and costs. During the evidentiary hearing, evidence was presented of prior release forms utilized in prior unrelated cases between Wendy Coxhead, attorney for Appellant, and Karen Barnett, attorney for Appellee. The trial court ruled that a prior course of performance existed between Karen Barnett and Wendy Coxhead, and construed the release to include a provision waiving attorney fees and costs. On February 23, 1999, the trial court entered an Order Denying Plaintiff’s Motion For Attorney’s Fees and Costs.

Attorney fee awards in civil cases are subject to review by the abuse of discretion standard. H & S Corp. v. United States Fidelity & Guaranty Co., 667 So. 2d 393, 400 (Fla. 1st DCA 1995), citing DiStefano Construction, Inc. v. Fidelity and Deposit Co. of Maryland, 597 So. 2d 248 (Fla. 1992).

“Acceptance of an offer of judgment silent as to fees does not preclude the party so accepting from pursuing his statutory or other entitlement to fees.” Seminole Colony, Inc. v. Stanko, 501 So. 2d 195, 196 (Fla. 4th DCA 1987). The Florida Supreme Court in Wollard v. Lloyd’s and Companies of Lloyd’s, 439 So. 2d 217 (Fla. 1983), held that the “settlement of a disputed case is the functional equivalent of a confession of judgment or verdict in favor of the insured, and thus, provides a basis for an award of attorney fees pursuant to statute.” See also Avila v. Latin American Property and Cas. Ins. Co., 548 So. 2d 894 (Fla. 3d DCA 1989); Fitzgerald & Co. v. Roberts Electrical Contractors, Inc., 533 So. 2d 789 (Fla. 1st DCA 1988); Prygrocki v. Industrial Fire and Cas. Ins. Co., 407 So. 2d 345 (Fla. 4th DCA 1981), approved, 422 So. 2d 314 (Fla. 1982); Smolder v. Ford Life Ins. Co., 361 So. 2d 222 (Fla. 1st DCA 1978); Cincinnati Ins. Co. v. Palmer, 297 So. 2d 96 (Fla. 4th DCA 1974).

This Court finds that the trial court abused its discretion in its decision not to award Appellant attorney’s fees and costs. Therefore, after careful consideration, the Order of the lower court is reversed and remanded, for further proceedings consistent with this opinion.

REVERSED AND REMANDED with instructions to comply with the provisions of this opinion.

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¹Ms. Karen Barnett, was on vacation, and therefore, the “standard” STATE FARM release was drafted by an associate.

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