8 Fla. L. Weekly Supp. 134a
Insurance — Personal injury protection — Attorney’s fees — Proposal for settlement — Where insured rejected proposal for settlement made pursuant to section 768.79, and jury returned verdict in favor of insurer, finding that medical treatment at issue was not related to injuries sustained in automobile accident, insurer was entitled to award of attorney’s fees — Statute applies to PIP actions
LYNN JACOBY, Appellant, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1 99-44. December 11, 2000. Appeal from the County Court for Orange County, Janis Mary Halker, Judge Counsel: R. David Ayers, Jr., for Appellant. Michael V. Hammond, for Appellee.
(Before COHEN, WHITE, GRINCEWICZ, JJ.)
FINAL ORDER AND OPINION AFFIRMING TRIAL COURT
(PER CURIAM.) This is an appeal by Plaintiff/Appellant, Lynn Jacoby of the trial court’s Costs and Attorney’s Fees Final Judgment in favor of State Farm, predicated on § 768.79, Florida Statutes. (The “Offer of Judgment” statute). This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1). After consideration of the record on appeal and parties’ briefs, this Court dispenses with oral argument pursuant to Florida Rule of Appellate Procedure 9.320 and affirms the trial court’s order.
In July, 1994, Plaintiff was injured in an automobile accident while insured by Defendant, State Farm. After Plaintiff had received medical treatment, State Farm paid out $2,283.68 in benefits under Plaintiff’s personal injury protection coverage, but declined to pay an additional claim of $1,705.00. Plaintiff filed a suit against State Farm for breach of contract.
On October 28, 1997, State Farm served a Proposal for Settlement, pursuant to § 768.79, Florida Statutes. The case proceeded to trial on May 27, 1998, where the jury returned a verdict in favor of State Farm, finding that the medical treatment at issue was not related to the injuries sustained by Plaintiff in the automobile accident. On June 9, 1998, State Farm filed a motion to tax fees and costs based on its proposal of settlement.
The trial court entered an order on September 15, 1998, finding that State Farm was entitled to recover its fees and costs. Plaintiff subsequently filed, and the trial court denied a motion for rehearing. On February 3, 1999, the trial court entered an order setting the amount of attorney’s fees and costs, and on March 10, 1999, entered a Costs and Attorney’s Fees Final Judgment. Plaintiff now appeals the final judgment.
Plaintiff argues that an insurance company is not entitled to attorney’s fees under § 768.79, the Offer of Judgment statute, in a PIP case because an insurer is not entitled to attorney’s fees under § 627.428, the Insurance Rates and Contracts chapter. Plaintiff also argues that an insurance company is not entitled to a multiplier of attorney’s fees under the Offer of Judgment statute in a PIP case.
On July 5, 2000, the Third District Court of Appeal answered the following question certified to it as one of great public importance:
Is the Proposal for Settlement/Offer of Judgment Statute, F.S. 768.79, applicable to PIP actions?
The court noted that this issue is one of first impression in this state, and answered the certified question in the affirmative. U.S. Security Ins. Co. v. Cahuasqui, 760 So. 2d 1101 (Fla. 3d DCA 2000).
This Court is bound by the Third District’s holding because the Fifth District Court of Appeal has not ruled on this issue. In the event the only case on point on a district level is from a district other than the Fifth District Court of Appeal, this Court is required to follow that decision. Pardo v. State, 596 So.2d 665 (Fla. 1992). Accordingly, it appears that the final judgment must be affirmed.
Although Plaintiff also argues that an insurance company is not entitled to a multiplier of attorney’s fees under the Offer of Judgment statute in a PIP case, the record reflects that the judgment did not include an award of a multiplier. To the extent Plaintiff argues that the number of hours expended is “inconceivable,” this Court must defer to the factual finding by the lower court on this issue.
Based on the foregoing, it is hereby
ORDERED AND ADJUDGED that the trial court’s Costs and Attorney’s Fees Final Judgment is AFFIRMED.
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