9 Fla. L. Weekly Supp. 127c
Insurance — Personal injury protection — Settlement — Motion to vacate settlement based on unilateral mistake of insurer in including provision for payment of attorney’s fees and costs is denied despite lack of detrimental reliance where mistake resulted from inexcusable lack of due care
RITA ADAMS, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. MS-01-7351-RE. December 11, 2001. Charles E. Burton, Judge. Counsel: James Spitz, West Palm Beach, for Plaintiff. Suzanne Rosen, Miami, for Defendant.
ORDER ON MOTION TO VACATE SETTLEMENT
This matter was before the Court on December 10, 2001 based upon a Motion to Vacate Settlement filed by the Defendant and a Motion for Entitlement of Fees and Costs filed by the Plaintiff. The Plaintiff was represented by James Spitz, Esquire and the Defendant was represented by Suzanne Rosen, Esquire. After hearing the argument of counsel and upon a review of the court file, the Court finds as follows:
At the hearing, the parties agreed that the Court’s ruling on the validity of the settlement agreement would be controlling on Plaintiff’s entitlement to fees and costs. On April 6, 2001, the Plaintiff brought an action based on PIP benefits in regard to a medical bill from Wellington Regional Hospital in the amount of $433.65. On November 13, 2001, Defendant sent a Proposal/Offer for Settlement to Plaintiff which offered the sum of One Hundred ($100.00) Dollars. In two places within the brief agreement, the Defendant noted that “This proposal does not include attorney’s fees and costs”, however if accepted, “the attorney’s fees and costs will be paid according to s. 627.736(8), Fla. Stat. and s. 627.428, Fla. Stat., (1998).” On November 14, 2001, the Plaintiff filed a notice of acceptance. On November 15, 2001, counsel for Defendant realized that she had made a mistake in drafting the settlement as attorney fees and costs were not supposed to be included. She notified the Plaintiff’s attorney by telephone and followed up by letter the next day informing him of the mistake.
Florida law permits a party to rescind a contract based on unilateral mistake unless the mistake results from an inexcusable lack of due care or unless the other party has so detrimentally relied on the contract that it would be inequitable to order recission. Maryland Casualty Co. v. Krasnek, 174 So.2d 541 (Fla. 1965). Here, it is clear that there is no detrimental reliance by the Plaintiff and the only issue is whether there was an “inexcusable lack of due care”.
In Florida Insurance Guaranty Association, Inc. v. Love, 732 So.2d 456 (Fla. 2DCA 1999), the trial court enforced a settlement where the insurance company rejected a $210,000.00 demand for settlement but instead offered to settle for $215,000.00, which was accepted. The insurance company claimed they made a clerical mistake and the true amount should have been $115,000.00. In reversing the trial court’s finding of inexcusable lack of due care, the court noted that while the error involved some degree of negligence, it was not sufficient to support a finding of inexcusable lack of due care. The court distinguished the holding in BMW of North America, Inc. v. Krathen, 471 So.2d 585 (Fla. 4 DCA 1985), noting that the BMW case involved the omission of an essential term of the settlement, rather than a clerical error. In BMW, a settlement offer was made and accepted. Shortly thereafter, BMW realized that they neglected to include the fact that the return of the vehicle was to be part of the agreement. They alleged that was always a condition precedent in negotiations between the parties. In affirming the refusal to vacate the settlement, the court held that “when contractual language is clear and unambiguous, courts cannot indulge in construction or interpretation of its plain meaning.” Id. at 587, Limehouse v. Smith, 797 So.2d 15 (Fla. 4 DCA 2001).
The agreement in this case was short, simple, and unambiguous. This did not involve a complex transaction and the terms were few and easily understood. The inclusion of an essential term cannot be characterized as a minor, inadvertent error. In Ali R. Ghahramani, M.D., P.A. v. Pablo A. Guzman, M.D., P.A., 768 So.2d 535 (Fla. 4DCA 2000), the court pointed out that in order to set aside an unambiguous agreement, it is insufficient to simply allege and prove a unilateral mistake. Soucy v. Casper, 658 So.2d 1015 (Fla. 4DCA 1995). Further, in Limehouse, supra, the court held that a party’s performance is not excused on the basis of unilateral mistake when the mistake is the result of the party’s own negligence and lack of foresight.
Accordingly, based on the foregoing it is,
ORDERED AND ADJUDGED that the Motion to Vacate Proposal/Offer for Settlement is DENIED. It is further,
ORDERED AND ADJUDGED that the Plaintiff is entitled to fees and costs pursuant to the settlement reached by the parties.
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