Attorney’s fees — Proposal for settlement — Voluntary dismissal with prejudice is judgment for purposes of entitlement to attorney’s fees under section 768.79(6)

OLEMA PEREZ ESPINOS, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division. Case No. 08-10385 CC 05 (08). May 28, 2014. Wendell M. Graham, Judge. Counsel: Peter Deprimo, for Plaintiff. Catherine Massard Ribetti, for Defendant.

THIS CAUSE having come to be heard before this Honorable court on May 19, 2014 and being otherwise duly advised in the premises enters the following findings of fact and conclusions of law:

1) On or about July 14, 2008, Defendant filed an Answer and Affirmative Defenses whereby it stated in its Fifth affirmative defense, “Moreover, the Defendant has reasonable proof that the claimant was not involved in a motor vehicle accident as the claimant does not appear on the police report.”

2) Defendant served on Plaintiff a Proposal for Settlement in the amount of S100.00 on or about November 17, 2008.

3) Plaintiff did not accept Defendant’s Proposal for Settlement within 30 days, thereby rejecting said Proposal for Settlement.

4) On October 11, 2012, Plaintiff filed a notice of voluntary dismissal.

5) On October 23, 2012, Defendant filed it motion for entitlement to fees and costs,

“Upon motion made by the offeror within 30 days after the entry of judgment or after voluntary or involuntary dismissal, the court shall determine the following: a) If a defendant serves an offer which is not accepted by the plaintiff, and if the judgment obtained by the plaintiff is at least 25 percent less than the amount of the offer, the defendant shall be awarded reasonable costs, including investigative expenses, and attorney’s fees. . .” F.S. Section 768.79(6), Florida Statues (2013).

The Plaintiff argues that its notice of voluntary dismissal with prejudice should not be considered a judgment in determining application to the above-referenced statute. This Honorable court respectfully disagrees and finds a dismissal with prejudice a basis for judgment of no liability. In MX Investments, Inc. v. Crawford, the Florida Supreme Court held, “we conclude that to be entitled to an award of attorney fees under section 768.79, Florida Statutes (1991), there must be a dismissal with prejudice of the cause of action.” 700 So. 2d 640 at 642. (Fla. 1997) [22 Fla. L. Weekly S530a].

Additionally, Plaintiff argues Defendant’s offer was nominal and not made in good faith. However, “the obligation of good faith merely requires that the offeror have a reasonable foundation on which to base the offer; it does not demand that the offeror possess, at the time such person makes the offer, the kind or quantum of evidence need to support a judgment.” Donohoe v. Starmed Staffing, Inc. 743 So. 2d 623 (Fla. 2d DCA 1999)[24 Fla. L. Weekly D2419a]. Good faith is, by its very nature, determined by the subjective motivations and beliefs of the pertinent actor; as long as the offeror has a basis in known or reasonably believed fact to conclude the offer is justifiable, the good faith requirement has been satisfied.” Dept. of Hwy Safety & Motor Vehicles, Florida Hwy Patrol v. Weinstein, 747 So. 2d 1019 (Fla. 3d DCA 1999)[24 Fla. L. Weekly D2799b].

In the instant case, the Plaintiff had not been listed as a passenger on the police report. “The absence of information in such written crash reports regarding the existence of passengers in the vehicles involved in the crash constitutes a rebuttable presumption that no such passengers were involved in the reported crash.” Section 316.068, Florida Statutes (2008). The Defendant had a reasonable foundation upon which to base its offer as it possessed the subjective justifiable belief that its exposure to liability was nominal. Accordingly, it is hereby

ORDERED AND ADJUDGED that Defendant is entitled to fees and costs.