9 Fla. L. Weekly Supp. 705a
Insurance — Personal injury protection — Motion to enforce settlement agreement where insured accepted offered settlement including condition requiring execution of a release but now objects to the language of the release — Regardless of whether release was attached to offer, reference in offer to “attached release” placed insured’s counsel on notice that it was a condition of the offer — Objected to language in release, which is not incapable of being stated with particularity, does not render release invalid — Motion to enforce settlement agreement is granted — Where insured’s counsel did not act for purposes of delaying settlement, and insured’s arguments had some merit and were done in good faith, motion for sanctions is denied
PATRICIA SPIKER, Plaintiff, vs. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 6th Judicial Circuit in and for Pasco County. Case No. 01-603CC, Division U. June 19, 2002. William C. Sestak, Judge. Counsel: Nikki Kavouklis. Gale L. Young, Reynolds & Stowell, St. Petersburg.
ORDER ON MOTION TO ENFORCE SETTLEMENTAND MOTION FOR SANCTIONS
THIS CAUSE coming before the Court on the Motion to Enforce Settlement and Motion for Sanctions under Florida Statutes, Section 57.105; and the Court having heard argument of Counsel; and the Court having reviewed the Court file; and the Court finding, as a factual basis, that:
1. This is a breach of contract action in which the Plaintiff sought damages from her automobile insurance carrier for no-fault benefits including personal injury protection benefits and med-pay benefits.
2. At some point during the action, the PIP and med-pay benefits were exhausted.
3. On December 17, 2001, Defendant served a Proposal for Settlement on Plaintiff. The proposal included zero (0.00) dollars to be paid to Plaintiff (presumably because benefits were exhausted); and conditions that included an agreement to pay reasonable attorney’s fees and costs, either to be agreed upon or determined by the Court at an evidentiary hearing; the execution of a Release; and, the execution of a Stipulation to Dismiss the action with prejudice. A copy of the Release was attached to the Proposal of Settlement.
4. On December 19, 2001, Plaintiff filed a Notice of Acceptance of the Proposal for Settlement and attached the front page of the proposal to the Notice of Acceptance.
5. In January, 2002, the Parties initiated discovery regarding the amount of attorney’s fees and court costs.
6. On April 9, 2002, Plaintiff’s counsel sent a letter to defense counsel in which she offered to settle the attorney’s fees and court costs claim for $4,000.00 in fees and $200.65 in costs.
7. On April 12, 2002, defense counsel sent a letter to Plaintiff’s counsel accepting the offer to settle for $4,000.00 in fees and $200.65 in costs. Defense counsel reminded Plaintiff’s counsel of the condition of the Proposal for Settlement regarding the execution of the Release and forwarded another copy to Plaintiff’s counsel.
8. On April 16, 2002, Plaintiff’s counsel sent a letter to defense counsel objecting to the language of the Release and revoking any offer to settle the issue of attorney’s fees and costs.
9. Defendant seeks to enforce the settlement as to both the benefits and attorney’s fees and costs; and, further, seek an award of attorney’s fees pursuant to Chapter 57.105, Florida Statutes.
10. Plaintiff’s counsel argues that the Release was not attached to the Proposal for Settlement that she received in December 2001; and, even if it had been attached, paragraph 3 of the Release is invalid as it is a condition that is incapable of being stated with particularity and since, the condition of executing an `invalid’ Release is itself `invalid’, the entire offer (Proposal for Settlement) is invalid, citing Zalis v. M.E.J. RICH CORP., 797 So. 2d 1289 (Fla. 4th DCA 2001).
Based on the foregoing, the Court finds that:
A. The Release which is now in question was attached to the Proposal for Settlement, however, if for some reason it was lost, misplaced, or never provided to Plaintiff’s counsel, the language of the Proposal for Settlement specifically refers to `the attached release’ placing counsel on notice that it was one of the conditions of the offer to settle. Plaintiff’s counsel, pursuant to statute and rule, had thirty (30) days to accept or reject the offer. She accepted it within two (2) days.
B. While this Court does not necessarily favor the language in paragraph 3 of the Release, it is not incapable of being stated with particularity. Plaintiff, by and through her counsel, knows or should know who may have a lien for no-fault benefits or to whom she (Plaintiff) may have executed an assignment of benefits and the amounts. Paragraph 3 of the Release is not invalid and the decision in Zalis is inapplicable.
C. This Court does not believe that Plaintiff Counsel’s filing of the Notice of Withdrawing Motion for Attorney’s Fees was filed to delay the settlement of the attorney’s fees in this case. The argument of Plaintiff’s counsel had some merit and was done in good faith. As an aside, it was Judge Marc Salton and not your undersigned that entered the Order in Pasco County case, Krammes v. State Farm Case No. 99-915CC attached to defendant’s Motion and marked Exhibit H. Further, in speaking with Judge Salton, he believes a typographical error occurred in the preparation of that Order in that he believes that paragraph 3 of the Release in the Krammes case should have been stricken and not paragraph 4.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Motion to Enforce Settlement is GRANTED and the Plaintiff, and her counsel shall execute the necessary documents to SETTLE this action; it is further
ORDERED AND ADJUDGED that the Motion for Sanctions under Florida Statutes, Section 57.105 is DENIED.
* * *
