21 Fla. L. Weekly Supp. 431a
Online Reference: FLWSUPP 2105ROME
Offer of judgment — Where medical provider rejected insurer’s $1.00 offer of
judgment in PIP suit in which insurer raised affirmative defense that demand
letter was not sent to designated recipient, provider sent second demand letter
during pendency of suit, and insurer paid amount demanded in second letter,
insurer’s payment to provider was not confession of judgment entitling provider
to award of attorney’s fees — Final judgment that did not award provider
anything was at least 25% of amount offered by insurer and entitles insurer to
award of attorney’s fees
INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for
Miami-Dade County. Case No. 08-2558 SP 23 (04). December 31, 2013. Jason Emilios
Dimitris, Judge. Counsel: Michael P. Brodi, Florida Law Center, P.A., N. Miami;
and Marlene S. Reiss, Marlene S. Reiss, P.A., Miami, for Plaintiff. Reuven
Herssein, Herssein Law Group, North Miami, for Defendant.
ORDER GRANTING MOTION FOR
ATTORNEY’S FEES AND COSTS
relevant statutes and case law, the Court’s findings are set forth below.
policy issued by Defendant USAA Casualty Insurance Company (Defendant).
Plaintiff provided medical services to the policy holders, was assigned the
benefits of the policy, and sent a demand letter to the Defendant on May 1, 2007
in accordance with Florida Statute § 627.736(11). Plaintiff filed suit after the
Defendant failed to pay the claim. The Defendant filed an Answer which included
an affirmative defense that the Plaintiff’s May 1, 2007 demand letter failed to
comply with the statutory requirements of § 627.736(11). Subsequently, the
Defendant moved for summary judgment based upon this defense specifically
arguing that the demand letter was not mailed to the designated recipient. In
response, Plaintiff moved this Court1 to
abate the action in order to allow them the opportunity to send a second demand
letter that would cure the defect that Defendant alleged. Prior to the this
Court issuing a decision as to whether to abate the action, the Plaintiff sent
out a second demand letter. On May 6, 2009, this Court held that Plaintiff’s
first demand letter sufficiently complied with § 627.736(11), but deferred
ruling as to whether the letter demanded the proper amount. On May 27, 2009, the
Defendant paid Plaintiff the amount requested in the second demand letter.
attorney fees and costs pursuant to F.S. § 627.428 which was granted by this
Court. Specifically, on November 6, 2009, this Court held that Defendant’s
payment of the amount requested in the second demand letter was the equivalent
of a confession of judgment and entered Final Judgment awarding fees and costs
on June 29, 2010. Following an appeal by the Defendant on March 19, 2012, the
Circuit Court reversed this Court’s determination that the Plaintiff was
entitled to attorney’s fees after concluding that Defendant’s payment pursuant
to the second demand letter did not fit within the parameters of the “confession
of judgment” rule. Circuit Court Opinion at 5. In explaining its reasoning, the
Circuit Court stated that Defendant’s “payment to settle the claim was not a
unilateral decision catalyzed by the initiated lawsuit. But rather was prompted
by Plaintiff’s second demand letter and representations that it would not seek
attorney’s fees should Defendant pay pursuant to that demand letter.” Id.
This case was remanded back to this Court to consider Defendant’s Motion for
Attorney’s Fees Pursuant to Proposal for Settlement and for further proceedings
consistent with the Circuit Court’s ruling. Id. at 6.
the Defendant pursuant to the Circuit Court’s May 19, 2012 Opinion finding that
the Defendant’s May 27, 2009 payment to Plaintiff was not a confession of
judgment. Plaintiff, in response, filed an opposition to the Defendant’s Motion
for entry of Final Judgment. On October 4, 2012, this Court entered Final
Judgment for Defendant. Following entry of Final Judgment, Plaintiff moved this
Court to vacate Final Judgment pursuant to Fla.R.Civ.P. 1.540. On December 13,
2013, this Court heard argument from both parties on Defendant’s Motion for
Attorney’s Fees and Costs and Plaintiff’s Motion to Vacate Final Judgment.
Following presentment of argument, this Court denied Plaintiff’s Motion to
Vacate Final Judgment on December 31, 2013 and therefore, the only Motion now
before this Court is Defendant’s Motion for Attorney’s Fees and Costs pursuant
to F.S. § 768.79.
(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
the 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 offer, and the
court shall set off such costs and attorney’s fees against the
. . .
they are entitled to attorney’s fees and costs in reliance upon the fact that on
February 13, 2009, Defendant served a Proposal for Settlement on Plaintiff
offering $1.00 which expired and therefore was rejected. Defendant’s Motion for
Attorney’s Fees and Costs p. 2. Under F.S. § 768.79, if there is a judgment of
no liability or one for at least twenty-five percent less than the offer of
settlement, the offeror in this case, USAA Casualty, is entitled to attorney’s
fees and costs. The Defendant states in its Motion that it is entitled to
attorney’s fees and costs pursuant to F.S. § 768.79 since the Circuit Court and
trial court specifically found that USAA’s payment to Plaintiff was not a
confession of judgment in this action, and as a result, Plaintiff’s final
judgment which did not award Plaintiff anything was “[at least] 25% of the
amount offered by USAA.” Id. at 3. This Court finds that USAA obtained a
qualifying judgment and that their offer of judgment complied with the technical
mandates of the statute.
Fees and Costs is HEREBY GRANTED. The Defendant shall file within 14 days of
this Order a Motion with supporting case law as to the reasonableness of an
attorney’s fees award under F.S. § 768.79(7)(b) especially in light of
Central Motor Company d/b/a Central Hyundai v. Earline P. Shaw, 3 So.3d
367 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D160a]. Plaintiff shall file any
response thereto within 14 days of Defendant’s filing.
originally before Judge Eric Hendon. Judge Jason Emilios Dimitris assumed all
Section Four cases as of April 2013.
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