9 Fla. L. Weekly Supp. 19b
Insurance — Automobile — Action for declaratory judgment that insurer’s practice of charging premium based on industry reference value but paying the lower of either actual cash value or industry reference value in the event of loss is in violation of Florida law — Order granting insurer’s motion to enforce settlement is vacated where both parties agree there was no settlement — No abuse of discretion in denial of motion to amend complaint to add class action allegations and claim for consequential damages given futility of amendment, since prior to class certification insurer offered insured 100% of his demand for vehicle’s industry reference value — Remand for entry of judgment in amount of insured’s demand, as both parties agree that sum is appropriate amount for the vehicle — Insured’s motion for appellate attorney’s fees is granted
ADOLFO S. PICHARDO, Appellant, v. PROGRESSIVE CONSUMER INSURANCE COMPANY, A CORPORATION, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 00-438 AP. Lower Tribunal Case No. 00-4835 CC 05. Opinion Filed November 6, 2001. An appeal from the County Court in and for Miami-Dade County, Florida, Linda Dakis, Judge. Jeffrey M. Liggio, Jene P. Williams and Barbara Green, for Appellant. Francis A. Anania and Douglas H. Stein, for Appellee.
(Before the Honorable BERNARD S. SHAPIRO, ALAN POSTMAN, ELEANOR L. SCHOCKETT, JJ.)
(POSTMAN, J.) This is an appeal from an Order granting Pichardo’s Motion to Amend Complaint and granting Progressive’s Motion to Enforce Settlement.
In May, 1997, Pichardo (Appellant) and Progressive entered into an automobile insurance contract. On January 28, 2000, Plaintiff filed a Complaint against Progressive, seeking a declaratory judgment that Progressive’s practice of charging a premium based on an industry reference value, but paying the lower figure of either actual cash value or the industry value in the event of a loss, is in violation of Florida law. The industry reference value of Plaintiff’s car was $9,999.00, yet following an accident on May 27, 1998, in which Plaintiff’s car was severely damaged, Progressive only offered Plaintiff $2,475.00, the actual cash value of the vehicle. The specific relief sought by Plaintiff in the Complaint was for the court to:
a) Take jurisdiction over this matter for purposes of rendering a Declaratory Decree;
b) Having taken jurisdiction, that this Court enter an Order declaring that under the Policy and Florida Law, that Plaintiff is entitled to the valuation of $9,999.00;
c) Having taken jurisdiction, that the conduct of the Defendant, PROGRESSIVE is in violation of Florida Law
d) Grant such other relief as this Court deems proper;
e) Retain jurisdiction over the parties and subject matter to assess attorneys’ fees and costs pursuant to Florida Statute 627.428.
See Complaint at 3-4 (emphasis added).
On March 17, 2001, Progressive filed a Motion to Dismiss. On April 27, 2000, a Progressive claim representative spoke with Plaintiff’s counsel and stated that Progressive would, in fact, pay Plaintiff $9,999.00 for the loss of his vehicle. On May 3, 2000, Progressive sent a letter to Plaintiff’s counsel confirming the April 27 offer of $9,999.00. On June 7, 2000, Progressive’s counsel sent Plaintiff’s counsel a letter which read in part: “…pursuant to our last conversation, I have not had any response to the settlement offer made to your client.” On June 21, 2000, Progressive’s counsel sent Plaintiff’s counsel a second letter which read in part: “As I advised in my letter of June 7, 2000, I have not had any response to the settlement offer made to your client.” On July 7, 2000, Progressive’s counsel sent Plaintiff’s counsel a third letter which read in part: “…I still have not had any response to the settlement offer made to your client.” On July 28, 2000, Progressive filed a Motion to Enforce Settlement or Compel Plaintiff’s Response to Settlement.
On August 4, 2000, Plaintiff filed a Motion to Amend Complaint which, in addition to seeking declaratory relief, contained class action allegations. On September 22, 2000, a hearing was held on Plaintiff’s Motion to Amend Complaint. Progressive noted that the offer to Plaintiff of $9,999.00 was made prior to the making of the class action allegation. Progressive stated its position that there was not a settlement in the case and that it was simply arguing the futility of an amendment because, following its offer of all damages sought in the initial Complaint, Plaintiff had no damages and thus did not have standing to serve as a class representative. After requesting memos from the parties on the issue, the court concluded the hearing by noting to Plaintiff that: “Your pleadings do not ask for any more than what the defense has offered.”
On October 14, 2000, Plaintiff filed a Second Motion to Amend Complaint which, in addition to previously made claims, contained a claim for consequential damages including loss of use, interest, and finance charges. On October 23, 2000, Progressive filed a Memorandum of Law in Opposition to Plaintiff’s [August 4] Motion for Leave to Amend [the January 29, 2000] Complaint. Plaintiff never set for hearing, and thus the court never heard argument on, the October 10 Second Motion to Amend.
On November 6, 2000, the court entered an Order on Plaintiff’s Motion to Amend Complaint and Order Granting Defendant’s Motion to Enforce Settlement, which stated in part that:
Plaintiff’s Motion to Amend Complaint is hereby denied as prior to the certification of the class, the defendant offered plaintiff 100% of his demand and to proceed further with Plaintiff’s action would be futile. See, Ramon v. Aries Ins. Co., 25 Fla. L. Weekly D1830 (Fla. 3rd DCA 2000) citing Taran v. Blue Cross and Blue Shield of Fla. Inc., 685 So. 2d 1004, 1007 (Fla. 3rd DCA 1997). The defendant’s Motion to Enforce Settlement is granted, the court reserving on attorneys fees and costs.
On December 8, 2000, Plaintiff filed a Notice of Appeal of November 6, 2000, trial court order.
Both parties agree that there was no settlement, and as such the trial court’s Order Granting Defendant’s Motion to Enforce Settlement is hereby vacated. The appellate standard of review for a trial court’s decision to permit or refuse an amendment to the pleadings is abuse of discretion. See Life General Security Insurance Co. v. Horal, 667 So. 2d 967 (Fla. 4th DCA 1996). Given the futility of further amendment, the trial court’s Order on Plaintiff’s Motion to Amend Complaint was not an abuse of its discretion and is hereby affirmed. The case is, however, remanded to the trial court to enter judgment in favor of Plaintiff in the amount of $9999.00 as compensation for his loss, as both parties have agreed that this sum represents an appropriate amount for the vehicle. The case is further remanded to the trial court for a determination of the attorney’s fees to be awarded to Plaintiff. The parties have filed respective Motions for Attorney’s Fees on Appeal. Pursuant to Fla. R. App. P. 9.400, Plaintiff’s Motion for Attorney’s Fees on Appeal is hereby granted. Affirmed in part and Reversed in part.
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(SCHOCKETT, J., concurring in part and dissenting in part.) I concur with the rationale of the opinion, but dissent with respect to the award of appellate attorney’s fees to Plaintiff. Plaintiff’s position after the appeal is the same as it was before. I would grant Defendant’s Motion for Attorney’s Fees on Appeal.
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