8 Fla. L. Weekly Supp. 275a
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 reasonable, medically necessary, or related to injuries sustained in automobile accident, insurer was entitled to award of attorney’s fees — Statute applies to PIP actions
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, vs. MARK J. HENDERS, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1 99-63. January 16, 2001. Appeal from the County Court for Orange County, Jerry L. Brewer, Judge. Counsel: Eben C. Self, for Appellant. Lee N. Bernbaum, for Appellee.
(Before KIRKWOOD, GRIDLEY, RUSSELL, JJ.)
FINAL ORDER AND OPINION REVERSING TRIAL COURT
(PER CURIAM.) This is an appeal by Defendant/Appellant, State Farm Mutual Insurance Company, of the trial court’s Final Judgment which denied its prayer for reservation of jurisdiction to determine an award of fees and costs pursuant to Defendant’s proposal of settlement, 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 reverses the trial court’s order.
On or about January 24, 1996, Plaintiff was injured in an automobile accident while insured by Defendant, State Farm. Plaintiff received medical treatment, and subsequently, made a demand upon State Farm to pay benefits pursuant to the personal injury protection provisions of the policy. State Farm failed to pay, and on June 2, 1997, Plaintiff filed a suit against State Farm for breach of contract.
On May 8, 1998, State Farm served a Proposal for Settlement, pursuant to § 768.79, Florida Statutes. The case proceeded to trial on April 8-9, 1999, where the jury returned a verdict in favor of State Farm, finding that the medical treatment at issue was not reasonable, medically necessary, or related to the injuries sustained by Plaintiff in the automobile accident. On April 26, 1999, State Farm filed a Motion for Entry of Final Judgment, which included a request to tax fees and costs based on its proposal of settlement.
The trial court entered the Final Judgment on June 21, 1999, finding that Florida Statute 768.79 is in direct conflict with Florida Statute 627.428, and therefore, is inapplicable in “PIP” actions. Hence, the trial court held that State Farm was not entitled to recover its fees. State Farm now appeals the final judgment and argues that an insurance company is entitled to attorney’s fees under § 768.79, the Offer of Judgment statute, in a PIP case because no provision exists in the statute that prohibits an insurer from recovering attorney’s fees; and furthermore, the legislature has never instructed that offers of judgment shall not be applicable in PIP litigation.
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, the final judgment must be reversed.
Based on the foregoing, it is hereby
ORDERED AND ADJUDGED that the trial court’s Final Judgment is REVERSED, and the case REMANDED to the trial court for a determination of the amount of attorney’s fees to which State Farm is entitled.
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