42
Fla. L. Weekly D2567aTop of Form
Fla. L. Weekly D2567aTop of Form
Attorney’s
fees — Proposal for settlement — Appeals — Second-tier certiorari review of
order of circuit court appellate division affirming county court’s order
denying motion for entitlement to attorney’s fees on basis that nominal
proposal for settlement was not made in good faith — Petition for second-tier
review denied where there is no showing that circuit court failed to afford
procedural due process or failed to apply correct law resulting in miscarriage
of justice — Circuit court appellate panel did not err in affirming county
court order on basis that there was an insufficient record upon which it could
evaluate county court’s resolution of factual issues
fees — Proposal for settlement — Appeals — Second-tier certiorari review of
order of circuit court appellate division affirming county court’s order
denying motion for entitlement to attorney’s fees on basis that nominal
proposal for settlement was not made in good faith — Petition for second-tier
review denied where there is no showing that circuit court failed to afford
procedural due process or failed to apply correct law resulting in miscarriage
of justice — Circuit court appellate panel did not err in affirming county
court order on basis that there was an insufficient record upon which it could
evaluate county court’s resolution of factual issues
UNITED AUTOMOBILE INSURANCE COMPANY,
Petitioner, v. PARTNERS IN HEALTH CHIROPRACTIC CENTER, a/a/o Cecilia Yanique
Gerlin, Respondent. 3rd District. Case No. 3D17-666. L.T. Case Nos. 15-17 &
05-10682. December 6, 2017. On Petition for Writ of Certiorari from the Circuit
Court for Miami-Dade County, Appellate Division, Jason Bloch, Charles Johnson,
and Stephen Millan, Judges. Counsel: Michael J. Neimand, for petitioner. Law
Offices of Marlene S. Reiss, Esq., P.A., and Marlene S. Reiss, for respondent.
Petitioner, v. PARTNERS IN HEALTH CHIROPRACTIC CENTER, a/a/o Cecilia Yanique
Gerlin, Respondent. 3rd District. Case No. 3D17-666. L.T. Case Nos. 15-17 &
05-10682. December 6, 2017. On Petition for Writ of Certiorari from the Circuit
Court for Miami-Dade County, Appellate Division, Jason Bloch, Charles Johnson,
and Stephen Millan, Judges. Counsel: Michael J. Neimand, for petitioner. Law
Offices of Marlene S. Reiss, Esq., P.A., and Marlene S. Reiss, for respondent.
(Before ROTHENBERG, C.J., and
FERNANDEZ and LUCK, JJ.)
FERNANDEZ and LUCK, JJ.)
[Circuit court order published at 24
Fla. L. Weekly Supp. 785a.]
Fla. L. Weekly Supp. 785a.]
(ROTHENBERG, C.J.) United Automobile
Insurance Company (“United Auto”) seeks second-tier certiorari review of a
circuit court appellate decision affirming the county court’s order denying
United Auto’s motion for entitlement to attorney’s fees filed pursuant to
section 768.79, Florida Statutes (2013), and Florida Rule of Civil Procedure
1.442, following the plaintiff’s, Partners in Health Chiropractic Center
(“Partners in Health”), failure to accept United Auto’s nominal proposal for
settlement. Because there is no showing that the circuit court, sitting in its
appellate capacity, failed to afford United Auto procedural due process in the
appeal or failed to apply the correct law resulting in a miscarriage of
justice, we dismiss the petition. See Custer Med. Ctr. v. United Auto. Ins.
Co., 62 So. 3d 1086, 1092 (Fla. 2010).
Insurance Company (“United Auto”) seeks second-tier certiorari review of a
circuit court appellate decision affirming the county court’s order denying
United Auto’s motion for entitlement to attorney’s fees filed pursuant to
section 768.79, Florida Statutes (2013), and Florida Rule of Civil Procedure
1.442, following the plaintiff’s, Partners in Health Chiropractic Center
(“Partners in Health”), failure to accept United Auto’s nominal proposal for
settlement. Because there is no showing that the circuit court, sitting in its
appellate capacity, failed to afford United Auto procedural due process in the
appeal or failed to apply the correct law resulting in a miscarriage of
justice, we dismiss the petition. See Custer Med. Ctr. v. United Auto. Ins.
Co., 62 So. 3d 1086, 1092 (Fla. 2010).
FACTS
Cecilia Yanique Gerlin (“Gerlin”)
was treated by Partners in Health in 2003, and thereafter, she assigned her
rights to PIP benefits under her automobile insurance policy issued by United
Auto to Partners in Health. Partners in Health submitted bills for Gerlin’s
treatment to United Auto. After United Auto denied the claim, Partners in
Health filed suit against United Auto in the Miami-Dade county court, asserting
a claim for breach of contract for failing to pay the PIP benefits due under
Gerlin’s policy with United Auto. United Auto answered the complaint and denied
that the treatment was reasonable, related to the automobile accident Gerlin
was involved in on June 19, 2003, or necessary.
was treated by Partners in Health in 2003, and thereafter, she assigned her
rights to PIP benefits under her automobile insurance policy issued by United
Auto to Partners in Health. Partners in Health submitted bills for Gerlin’s
treatment to United Auto. After United Auto denied the claim, Partners in
Health filed suit against United Auto in the Miami-Dade county court, asserting
a claim for breach of contract for failing to pay the PIP benefits due under
Gerlin’s policy with United Auto. United Auto answered the complaint and denied
that the treatment was reasonable, related to the automobile accident Gerlin
was involved in on June 19, 2003, or necessary.
While the case was pending, United
Auto submitted a nominal proposal for settlement to Partners in Health, which
did not accept the offer. The case proceeded to trial in county court, and
after the jury found that Partners in Health’s services to Gerlin were not
related to the June 19, 2003 accident, United Auto filed a motion seeking an
order finding that it was entitled to its attorney’s fees pursuant to section
768.79 and rule 1.442. Partners in Health opposed United Auto’s motion arguing
that the proposal for settlement was not made in good faith.
Auto submitted a nominal proposal for settlement to Partners in Health, which
did not accept the offer. The case proceeded to trial in county court, and
after the jury found that Partners in Health’s services to Gerlin were not
related to the June 19, 2003 accident, United Auto filed a motion seeking an
order finding that it was entitled to its attorney’s fees pursuant to section
768.79 and rule 1.442. Partners in Health opposed United Auto’s motion arguing
that the proposal for settlement was not made in good faith.
The county court conducted a hearing
to determine whether United Auto’s nominal proposal for settlement prior to
trial was a good faith offer. After conducting the hearing, the county court
entered an order denying United Auto’s motion for entitlement to attorney’s
fees based on the following four findings: (1) the extensive and protracted
length of the litigation; (2) the prior rulings in favor of Partners in Health
(during litigation a final judgment was initially issued in favor of Partners
in Health, and Partners in Health was also awarded its fees and costs, but
those judgments were reversed on appeal prior to United Auto making its
proposal for settlement); (3) United Auto had no reasonable expectation that
its offer would be accepted; and (4) the record before the county court at the
time of the entitlement hearing failed to show that United Auto had no exposure
in the case when it made its proposal for settlement.
to determine whether United Auto’s nominal proposal for settlement prior to
trial was a good faith offer. After conducting the hearing, the county court
entered an order denying United Auto’s motion for entitlement to attorney’s
fees based on the following four findings: (1) the extensive and protracted
length of the litigation; (2) the prior rulings in favor of Partners in Health
(during litigation a final judgment was initially issued in favor of Partners
in Health, and Partners in Health was also awarded its fees and costs, but
those judgments were reversed on appeal prior to United Auto making its
proposal for settlement); (3) United Auto had no reasonable expectation that
its offer would be accepted; and (4) the record before the county court at the
time of the entitlement hearing failed to show that United Auto had no exposure
in the case when it made its proposal for settlement.
United Auto appealed the denial of
its motion for entitlement to attorney’s fees to the circuit court, sitting in
its appellate capacity. The circuit court appellate panel issued a detailed
opinion rejecting the first three grounds cited by the county court for denying
United Auto’s motion for entitlement to attorney’s fees, but affirmed the order
on appeal nevertheless, based on the circuit court’s standard of review (abuse
of discretion) and the absence of the trial transcript and certain medical
records. Because we conclude that the circuit court appellate panel applied the
correct law and nothing in the record indicates that United Auto was not
afforded due process, we dismiss the instant petition for lack of jurisdiction.
its motion for entitlement to attorney’s fees to the circuit court, sitting in
its appellate capacity. The circuit court appellate panel issued a detailed
opinion rejecting the first three grounds cited by the county court for denying
United Auto’s motion for entitlement to attorney’s fees, but affirmed the order
on appeal nevertheless, based on the circuit court’s standard of review (abuse
of discretion) and the absence of the trial transcript and certain medical
records. Because we conclude that the circuit court appellate panel applied the
correct law and nothing in the record indicates that United Auto was not
afforded due process, we dismiss the instant petition for lack of jurisdiction.
ANALYSIS
First, we note that the circuit
court appellate panel correctly reviewed the county court’s findings and order
under the abuse of discretion standard of review. See State Farm Fla. Ins.
Co. v. Laughlin-Alfonso, 118 So. 3d 314, 315 (Fla. 3d DCA 2013) (holding
that the abuse of discretion standard of review governs review of the trial
court’s determination that a proposal for settlement was not made in good
faith).
court appellate panel correctly reviewed the county court’s findings and order
under the abuse of discretion standard of review. See State Farm Fla. Ins.
Co. v. Laughlin-Alfonso, 118 So. 3d 314, 315 (Fla. 3d DCA 2013) (holding
that the abuse of discretion standard of review governs review of the trial
court’s determination that a proposal for settlement was not made in good
faith).
Second, the circuit court appellate
panel also applied the correct law when it rejected the first three grounds
relied on by the county court. The fact that the litigation may have been
protracted, resulting in extensive expenditure of resources, is not a valid
basis for finding that a nominal proposal for settlement is a bad-faith offer.
The issue is whether the defendant had a reasonable basis on which to make its
offer. Peoples Gas Sys., Inc. v. Acme Gas Corp., 689 So. 2d 300, 300
(Fla. 3d DCA 1997) (stating that “[t]he obligation of good faith . . . merely
insists that the offeror have some reasonable foundation on which to base an
offer”) (quotation omitted). The fact that Partners in Health may have obtained
favorable rulings by the county court earlier in the litigation is also of no
import in this case because those rulings were reversed on appeal prior to
United Auto’s proposal for settlement. Additionally, whether United Auto
reasonably expected Partners in Health to accept its offer is irrelevant. The
relevant consideration is whether United Auto fully intended to settle the case
when it made its offer. Peoples Gas, 689 So. 2d at 300-301 (stating that
“the fact that Metrogas and Siegel Gas may have believed that Peoples Gas would
reject their nominal offers is not determinative of the issue of good faith”)
(citing Schmidt v. Fortner, 629 So. 2d 1036, 1040 n.5 (Fla. 4th DCA
1993). In Schmidt, the Fourth District Court of Appeal held:
panel also applied the correct law when it rejected the first three grounds
relied on by the county court. The fact that the litigation may have been
protracted, resulting in extensive expenditure of resources, is not a valid
basis for finding that a nominal proposal for settlement is a bad-faith offer.
The issue is whether the defendant had a reasonable basis on which to make its
offer. Peoples Gas Sys., Inc. v. Acme Gas Corp., 689 So. 2d 300, 300
(Fla. 3d DCA 1997) (stating that “[t]he obligation of good faith . . . merely
insists that the offeror have some reasonable foundation on which to base an
offer”) (quotation omitted). The fact that Partners in Health may have obtained
favorable rulings by the county court earlier in the litigation is also of no
import in this case because those rulings were reversed on appeal prior to
United Auto’s proposal for settlement. Additionally, whether United Auto
reasonably expected Partners in Health to accept its offer is irrelevant. The
relevant consideration is whether United Auto fully intended to settle the case
when it made its offer. Peoples Gas, 689 So. 2d at 300-301 (stating that
“the fact that Metrogas and Siegel Gas may have believed that Peoples Gas would
reject their nominal offers is not determinative of the issue of good faith”)
(citing Schmidt v. Fortner, 629 So. 2d 1036, 1040 n.5 (Fla. 4th DCA
1993). In Schmidt, the Fourth District Court of Appeal held:
A mere
belief that the figure offered or demanded will not be accepted, on the other
hand, does not necessarily suggest to us either the absence of good faith or the
presence of bad faith-at least where the offeror fully intends to conclude a
settlement if the offer or demand is accepted as made, and the amount of the
offer or demand is not so widely inconsistent with the known facts of the case
as to suggest on its face the sole purpose of creating a right to fees if it is
not accepted.
belief that the figure offered or demanded will not be accepted, on the other
hand, does not necessarily suggest to us either the absence of good faith or the
presence of bad faith-at least where the offeror fully intends to conclude a
settlement if the offer or demand is accepted as made, and the amount of the
offer or demand is not so widely inconsistent with the known facts of the case
as to suggest on its face the sole purpose of creating a right to fees if it is
not accepted.
Schmidt, 629 So. 2d at 1040 n.5.
Third, the circuit court appellate
panel also applied the correct law when it relied on the long-standing
principle that where factual issues exist as to whether the trial court abused
its discretion in reaching its conclusion, and the question on appeal is
whether its findings were supported by the record, the appellant must provide
the reviewing court with an adequate record on appeal. See Applegate v.
Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979). Although this
Court might not necessarily agree with the circuit court appellate panel’s
determination as to whether the record before it was adequate, this Court is
not free to reweigh the adequacy of the record or the sufficiency of the
evidence on second-tier certiorari review. See Far Niente, LLC v. City of
Key West, 209 So. 3d 43, 46 (Fla. 3d DCA 2016) (holding that “review is to
become narrower, not broader, as the case moves to higher levels of appellate
review”; “[t]he issues presented for review are not to be reinvestigated,
tried, and determined upon the merits generally”; and only “grievous errors”
are subject to second-tier certiorari review) (citing Custer, 62 So. 3d
at 1092) (full citation, internal quotation, and emphasis omitted).
panel also applied the correct law when it relied on the long-standing
principle that where factual issues exist as to whether the trial court abused
its discretion in reaching its conclusion, and the question on appeal is
whether its findings were supported by the record, the appellant must provide
the reviewing court with an adequate record on appeal. See Applegate v.
Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979). Although this
Court might not necessarily agree with the circuit court appellate panel’s
determination as to whether the record before it was adequate, this Court is
not free to reweigh the adequacy of the record or the sufficiency of the
evidence on second-tier certiorari review. See Far Niente, LLC v. City of
Key West, 209 So. 3d 43, 46 (Fla. 3d DCA 2016) (holding that “review is to
become narrower, not broader, as the case moves to higher levels of appellate
review”; “[t]he issues presented for review are not to be reinvestigated,
tried, and determined upon the merits generally”; and only “grievous errors”
are subject to second-tier certiorari review) (citing Custer, 62 So. 3d
at 1092) (full citation, internal quotation, and emphasis omitted).
The final reason provided by the
county court for rejecting United Auto’s motion for entitlement to attorney’s
fees based on its proposal for settlement was that “the record before the Court
at the time of the entitlement hearing failed to show that United Auto had no
exposure in the case at the time the Proposal” was made. We conclude that the
circuit court appellate panel correctly determined that this finding by the
county court was also an incorrect application of the law. United Auto was not
required to show that it had no exposure in the case at the time the
proposal for settlement was made — it was only required to demonstrate that at
the time of its offer, it possessed a reasonable basis to conclude that its
exposure was nominal. See Isaias v. H.T. Hackney Co., 159 So. 3d 1002,
1004-05 (Fla. 3d DCA 2015); Laughlin-Alfonso, 118 So. 3d at 315 (“To
determine whether State Farm’s settlement offer was justified, we consider
whether the record demonstrates conclusively that, at the time [the offer] was
made, [State Farm] . . . had a reasonable basis . . . to conclude that [its] exposure
was nominal.”) (internal citations omitted) (alterations in original); Event
Servs. Am., Inc. v. Ragusa, 917 So. 2d 882, 884 (Fla. 3d DCA 2005) (holding
that a nominal offer should be stricken unless the offeror had a reasonable
basis to conclude that its exposure was nominal).
county court for rejecting United Auto’s motion for entitlement to attorney’s
fees based on its proposal for settlement was that “the record before the Court
at the time of the entitlement hearing failed to show that United Auto had no
exposure in the case at the time the Proposal” was made. We conclude that the
circuit court appellate panel correctly determined that this finding by the
county court was also an incorrect application of the law. United Auto was not
required to show that it had no exposure in the case at the time the
proposal for settlement was made — it was only required to demonstrate that at
the time of its offer, it possessed a reasonable basis to conclude that its
exposure was nominal. See Isaias v. H.T. Hackney Co., 159 So. 3d 1002,
1004-05 (Fla. 3d DCA 2015); Laughlin-Alfonso, 118 So. 3d at 315 (“To
determine whether State Farm’s settlement offer was justified, we consider
whether the record demonstrates conclusively that, at the time [the offer] was
made, [State Farm] . . . had a reasonable basis . . . to conclude that [its] exposure
was nominal.”) (internal citations omitted) (alterations in original); Event
Servs. Am., Inc. v. Ragusa, 917 So. 2d 882, 884 (Fla. 3d DCA 2005) (holding
that a nominal offer should be stricken unless the offeror had a reasonable
basis to conclude that its exposure was nominal).
In applying the correct standard on
appellate review, the circuit court appellate panel noted that the
determination of good faith regarding the offeror’s reasonable assessment of
its exposure is a fact-intensive inquiry made on a case by case basis. See
Fox v. McCaw Cellular Commc’ns of Fla., Inc., 745 So. 2d 330, 333 (Fla. 4th
DCA 1998) (“Whether an offer was made in bad faith involves a matter of
discretion reposed in the trial judge to be determined from the facts and
circumstances surrounding the offer.”). When attempting to determine whether
the county court abused its discretion after considering the facts and
circumstances, the circuit court appellate panel noted that United Auto was
relying on the testimony of Dr. Merrit, who conducted a peer review, and
medical records purporting to show that Gerlin’s injuries were work related,
and thus, not related to the subject automobile accident. However, the circuit
court appellate panel noted that Dr. Merrit’s peer review report was
“ambiguous,” thus requiring review of his trial testimony. However, the trial
transcript and the medical records allegedly reflecting that Gerlin’s injuries
were not related to the automobile accident were not included in the record on
appeal.
appellate review, the circuit court appellate panel noted that the
determination of good faith regarding the offeror’s reasonable assessment of
its exposure is a fact-intensive inquiry made on a case by case basis. See
Fox v. McCaw Cellular Commc’ns of Fla., Inc., 745 So. 2d 330, 333 (Fla. 4th
DCA 1998) (“Whether an offer was made in bad faith involves a matter of
discretion reposed in the trial judge to be determined from the facts and
circumstances surrounding the offer.”). When attempting to determine whether
the county court abused its discretion after considering the facts and
circumstances, the circuit court appellate panel noted that United Auto was
relying on the testimony of Dr. Merrit, who conducted a peer review, and
medical records purporting to show that Gerlin’s injuries were work related,
and thus, not related to the subject automobile accident. However, the circuit
court appellate panel noted that Dr. Merrit’s peer review report was
“ambiguous,” thus requiring review of his trial testimony. However, the trial
transcript and the medical records allegedly reflecting that Gerlin’s injuries
were not related to the automobile accident were not included in the record on
appeal.
Thus, the circuit court appellate
panel concluded that there was an insufficient record upon which it could
evaluate the county court’s resolution of the factual issues and, in reliance
upon Applegate, affirmed the order denying United Auto’s motion for
entitlement to attorney’s fees pursuant to its proposal for settlement. Because
the circuit court appellate panel has applied the correct law and the record
does not demonstrate that United Auto was not afforded due process, we dismiss
the petition for lack of jurisdiction.
panel concluded that there was an insufficient record upon which it could
evaluate the county court’s resolution of the factual issues and, in reliance
upon Applegate, affirmed the order denying United Auto’s motion for
entitlement to attorney’s fees pursuant to its proposal for settlement. Because
the circuit court appellate panel has applied the correct law and the record
does not demonstrate that United Auto was not afforded due process, we dismiss
the petition for lack of jurisdiction.
Petition dismissed.
* * *