39 Fla. L. Weekly D1271c
settlement — Trial court used incorrect standard in determining whether
insurer’s nominal proposal for settlement of insured’s claim for hurricane
damage was made in good faith — Rule is that minimal offer can be made in good
faith if evidence demonstrates that, at time it was made, the offeror had
reasonable basis to conclude that its exposure was nominal — Record contains
enough evidence to conclude that insurer only faced nominal exposure, as insured
did not first report alleged damage to home for nearly four years after fact —
Remand with instructions to enter order granting fees to insurer and determining
amount to be awarded
Appellant, v. MAGDIEL PEREZ, Appellee. 4th District. Case No. 4D12-1412. June
18, 2014. Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Robert A. Rosenberg, Judge; L.T. Case No. 09-62209 13. Counsel:
Kara Berard Rockenbach and Kristi Bergmann Rothell of Methe & Rockenbach,
P.A., West Palm Beach, and Jose P. Font and Carlton Bober of Vernis &
Bowling, P.A., for appellant. Paul B. Feltman of Alvarez, Carbonell, Feltman
& DaSilva, PL, Coral Gables, for appellee.
ON MOTION FOR REHEARING
opinion dated April 9, 2014, and issue the following in its place.
denying its right to attorney’s fees. We determine that the trial court erred in
applying the wrong standard for determining whether attorney’s fees were
warranted. We reverse the trial court’s order and remand with instructions that
the trial court enter an order granting Citizens’ entitlement to attorney’s fees
and determining the amount to be awarded.
24, 2005, Hurricane Wilma allegedly caused damage to Perez’s home. Although
Perez admitted to seeing some water leaking into his house during the hurricane,
it was not until almost four years later, on June 12, 2009, that Perez informed
Citizens of the alleged damage to his home.
contacted Perez, and as allowed by the policy, requested he send them a “sworn
proof of loss,” containing certain information regarding the home and the
alleged damage. Although Perez later submitted some of the requested information
to Citizens, he did not do so in a timely manner.1
summary judgment seeking a ruling by the trial court that Perez’s claim was
barred since, as of the time of the filing of the motion, he had not provided
Citizens with the requested information. The trial court denied Citizens’ first
motion for summary judgment. After the first motion for summary judgment was
denied, Citizens served Perez with a proposal for settlement in the amount of
$1000. Perez rejected the proposal for settlement. Citizens then filed a second
motion for summary judgment. The second motion for summary judgment was granted,
and final summary judgment was entered in favor of Citizens on the grounds that
the notice of the claim was not promptly provided.
motion to determine its entitlement to attorney’s fees pursuant to Florida Rule
of Civil Procedure 1.442 and section 768.79, Florida Statutes (2013).2 The trial court determined that the settlement
proposal offered by Citizens was not made in good faith, and thus denied
Citizens’ entitlement to recover attorney’s fees. Citizens appeals this denial.
made in good faith is abuse of discretion.” Land & Sea Petroleum, Inc. v.
Bus. Specialists, Inc., 53 So. 3d 348, 354 (Fla. 4th DCA 2011) (citing
Sharaby v. KLV Gems Co., 45 So. 3d 560, 563 (Fla. 4th DCA 2010)); see
also § 768.79(7)(a), Fla. Stat. (2013) (“[T]he court may, in its
discretion, determine that an offer was not made in good faith.”) (emphasis
(1) In any civil action for damages filed in the courts of this
state, if a defendant files an offer of judgment which is not accepted by the
plaintiff within 30 days, the defendant shall be entitled to recover reasonable
costs and attorney’s fees incurred by her or him or on the defendant’s behalf
pursuant to a policy of liability insurance or other contract from the date of
filing of the offer if the judgment is one of no liability or the judgment
obtained by the plaintiff is at least 25 percent less than such
. . . .
(7)(a) 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.
1.442(h)(1) states: “If a party is entitled to costs and fees pursuant to
applicable Florida law, the court may, in its discretion, determine that a
proposal was not made in good faith. In such case, the court may disallow an
award of costs and attorneys’ fees.” Fla. R. Civ. P. 1.442(h)(1). Because
Citizens made a settlement offer to Perez, Perez rejected that offer, and
summary judgment was granted in Citizens’ favor, Citizens satisfied the initial
threshold to recover attorney’s fees under section 768.79. However, the issue in
this case is whether Citizens is prevented from recovering attorney’s fees under
subsection (7)(a) of the statute, and rule 1.442(h)(1), based on whether
Citizens’ settlement offer was made in good faith.
proposal for settlement was made in good faith. Perez cited to the trial court,
and the trial court seems to have relied on, language from a Third District
case, Event Services America, Inc. v. Ragusa, 917 So. 2d 882 (Fla. 3d DCA
2005). In Event Services, the Third District stated:
A reasonable basis for a nominal offer exists only where ‘the
undisputed record strongly indicate[s] that [the defendant] had no
exposure‘ in the case.
689 So. 2d 292, 300 (Fla. 3d DCA 1997)) (emphasis added). However, the Fourth
District has consistently held that:
The rule is that a minimal offer can be made in good faith if the
evidence demonstrates that, at the time it was made, the offeror had a
reasonable basis to conclude that its exposure was
4th DCA 2006) (emphasis added) (quoting Connell v. Floyd, 866 So. 2d 90,
94 (Fla. 1st DCA 2004)). The difference between the standard quoted in Event
Services and the one used by this court was discussed by Judge Warner in her
concurring opinion in Sharaby. As Judge Warner explained,
Event Services seems to suggest that the record must
conclusively establish no liability on the part of the offeror to support a
finding that a nominal offer was made in good faith. I disagree with that
implication, and our case law does not support that interpretation, which the
trial court in this case appeared to give it.
stated that “[t]he court applied too onerous a standard of requiring the record
to be ‘undisputed’ that he had no liability in order to support a finding of
good faith in the nominal offer.” Id. at 565. Likewise, we conclude that
requiring a party to face “no exposure” in a case in order to make a nominal
offer in good faith is too onerous a standard; the standard used by this court
requires only that a party’s “exposure [i]s nominal.”
Citizens faced only nominal exposure, as Perez did not first report the alleged
damage to his home for nearly four years after the fact.
attorney’s fees and remand with instructions that the trial court enter an order
granting attorney’s fees to Citizens and determining the amount to be awarded.
Conner, JJ., concur.)
information to Citizens within sixty days of the loss.
trial court granted.
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