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February 16, 2018 by admin

Insurance — Attorney’s fees — Proposal for settlement — Where trial court had entered summary judgment for insurer in insured’s action alleging breach of insurance contract on basis that claimed loss was not covered under policy, it was an abuse of discretion to deny insurer’s motion for attorney’s fees pursuant to offer of judgment statute on ground that insurer’s nominal proposal for settlement was not made in good faith — Insurer had a reasonable basis at the time of the proposal to conclude that its exposure was nominal

43 Fla. L. Weekly D395a

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Insurance
— Attorney’s fees — Proposal for settlement — Where trial court had entered
summary judgment for insurer in insured’s action alleging breach of insurance
contract on basis that claimed loss was not covered under policy, it was an
abuse of discretion to deny insurer’s motion for attorney’s fees pursuant to
offer of judgment statute on ground that insurer’s nominal proposal for
settlement was not made in good faith — Insurer had a reasonable basis at the
time of the proposal to conclude that its exposure was nominal

MOUNT
VERNON FIRE INSURANCE COMPANY, Appellant, v. NEW MOON MANAGEMENT, INC., a/k/a
NEW MOON MANAGEMENT COMPANY, Appellee. 3rd District. Case No. 3D16-2243. L.T.
Case No. 13-886-K. Opinion filed February 14, 2018. An Appeal from the Circuit
Court for Monroe County, Mark H. Jones, Judge. Counsel: Fowler White Burnett,
P.A., and Esther E. Galicia, for appellant. Garcia Law Firm, Trial Attorneys,
and Nathalia A. Mellies, for appellee.
(Before
ROTHENBERG, C.J., and EMAS and LUCK, JJ.)
(ROTHENBERG,
C.J.) The defendant below, Mount Vernon Fire Insurance Company (“Mount
Vernon”), appeals the denial of its amended motion for entitlement to
attorney’s fees and costs (“amended motion for entitlement”) filed pursuant to
section 768.79, Florida Statutes (2015), and Florida Rule of Civil Procedure
1.442, which was based on the trial court’s finding that Mount Vernon’s nominal
proposal for settlement to its insured, New Moon Management, Inc., etc. (“New
Moon”), was not made in good faith. Because we conclude that the trial court
abused its discretion by finding that Mount Vernon’s proposal for settlement
was not made in good faith, see State Farm Fla. Ins. Co. v.
Laughlin-Alfonso
, 118 So. 3d 314, 315 (Fla. 3d DCA 2013) (“The abuse of
discretion standard of review governs this Court’s review of a trial court’s
determination that a proposal for settlement was not made in good faith.”), we
reverse the order under review and remand for the entry of an order granting
Mount Vernon’s amended motion for entitlement.
Mount
Vernon issued a commercial property and general liability policy to New Moon.
Following heavy rains in August 2008, New Moon filed a claim under the policy
for water damage. Later that year, after obtaining a roof damage report from a
structural engineer, Mount Vernon denied the claim based on exclusions and
limitations in the insurance policy.
In August
2013, New Moon filed a complaint against Mount Vernon, asserting claims for
breach of the insurance contract and bad faith. After nearly two years of
extensive discovery, on July 2, 2015, Mount Vernon served a nominal proposal
for settlement ($1,000) on New Moon pursuant to rule 1.442 and section 768.79.
Within a
week of serving its proposal for settlement, Mount Vernon filed a motion for
final summary judgment, asserting that the damage was not covered under the
terms of the policy. Following a hearing, the trial court granted Mount
Vernon’s motion for summary judgment. Thereafter, the trial court entered final
summary judgment in favor of Mount Vernon and denied New Moon’s motion for
rehearing and motion for relief from judgment.1

Pursuant
to rule 1.442 and section 768.79, Mount Vernon filed its amended motion for
entitlement based on New Moon’s failure to accept Mount Vernon’s proposal for
settlement. In response, New Moon argued that the nominal proposal for
settlement was not made in good faith because Mount Vernon did not have a
reasonable basis to offer the nominal amount.
At the
hearing on the amended motion for entitlement, Mount Vernon argued that it
submitted its proposal for settlement following extensive discovery and the
taking of several depositions and, at the time it submitted its proposal for
settlement, the record reflected that there were no issues of material fact and
that Mount Vernon had a reasonable basis to conclude that it had “no exposure,
let alone nominal exposure.” The trial court reserved ruling. Thereafter, the
trial court entered an order denying Mount Vernon’s amended motion for
entitlement, finding that Mount Vernon’s nominal proposal for settlement was
not made in good faith. See § 768.79(7)(a), Fla. Stat. (2015) (“If a
party is entitled to costs and fees pursuant to the provisions of this section,
the court may, in its discretion, determine that an offer was not made in good
faith. In such case, the court may disallow an award of costs and attorney’s
fees.”). Mount Vernon’s appeal followed.
Mount
Vernon contends that the trial court abused its discretion by determining that
the nominal proposal for settlement was not made in good faith. We agree.
In
addressing whether the trial court abused its discretion by finding that Mount
Vernon’s nominal proposal for settlement was not was made in good faith, we
must consider whether Mount Vernon “had a reasonable basis at the time of the
offer to conclude that [its] exposure was nominal.” Fox v. McCaw Cellular
Commc’ns of Fla., Inc.
, 745 So. 2d 330, 333 (Fla. 4th DCA 1998); see
also
Dep’t of Highway Safety & Motor Vehicles, Fla. Highway Patrol
v. Weinstein
, 747 So. 2d 1019, 1021 (Fla. 3d DCA 1999) (reversing the trial
court’s denial of attorney’s fees, which were sought under section 768.79,
where the record conclusively demonstrates that, at the time the nominal
proposal for settlement was made, the offeror had a reasonable basis to
conclude that its exposure was nominal). Further, we recognize that good faith
is “determined by the subjective motivations and beliefs of the pertinent
actor.” Weinstein, 747 So. 2d at 1021.
In the
instant case, the record reflects that Mount Vernon made its proposal for
settlement following almost two years of litigation and extensive discovery.
Further, less than a week after making its proposal for settlement, Mount
Vernon moved for summary judgment, and in doing so, relied heavily on the
investigation report issued by its claim administrator in October 2008, the
roof damage report issued by structural engineers in November 2008, and the
exclusions and limitations contained in the policy. Thus, the record
conclusively demonstrates that Mount Vernon “had a reasonable basis at the time
of the offer to conclude that [its] exposure was nominal.” Fox, 745 So.
2d at 333. Accordingly, we conclude that the trial court abused its discretion
by denying Mount Vernon’s amended motion for entitlement based on the
determination that the nominal proposal for settlement was not made in good
faith. We, therefore, reverse the order under review and remand for the entry
of an order granting Mount Vernon’s amended motion for entitlement.2

Reversed
and remanded.
__________________
1New Moon appealed these orders, and
this Court affirmed. See New Moon Mgmt., Inc. v. Mount Vernon Fire
Ins. Co.
, 3D16-2242 (Fla. 3d DCA Dec. 27, 2017).
2In its answer brief, New Moon also
argued that the trial court’s order denying Mount Vernon’s amended motion for
entitlement should be affirmed because there was an ambiguity in the proposal
for settlement, thereby defeating its enforcement. As New Moon did not raise
this argument in the lower tribunal, the argument was not properly preserved
for appellate review. We have, therefore, not addressed this argument on
appeal.
* * *

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