settlement — Language of rule 1.442(d) and section 768.79(3) providing that
proposal for settlement shall not be filed “unless necessary to enforce”
provisions of rule and statute does not mandate that party must file proposal
for settlement prior to time it seeks to enforce entitlement to attorney’s fees
— Fact that insurer did not file proposals for settlement until day after
hearing on motion for entitlement to attorney’s fees does not invalidate
proposals — Ambiguity — Proposal that specified how much insurer was offering
for each of two counts was not ambiguous for failing to include a total amount
offered for both counts — Good faith offer — $100 settlement proposal was made
in good faith where insurer had reasonable basis to believe that it was not
liable for loss based on fact that vehicle that insured was driving at time of
accident belonged to her mother and was not covered under insured’s PIP policy,
case law and grant of insurer’s original motion for summary judgment on coverage
issue by predecessor judge
County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No.
00-264 CC 24. May 3, 2013. Honorable Rodolfo Ruiz, Judge. Counsel: Scott J.
Jontiff, Miami, for Plaintiff. Paula Ferris, Office of the General Counsel-Trial
Division, Miami, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION
FOR ENTITLEMENT TO ATTORNEY’S FEES
AUTOMOBILE INSURANCE COMPANY (“United”), Motion for Entitlement to Attorney’s
Fees. The Court having heard argument of counsel, as well as reviewed the file
and procedural history, including hearing transcripts, pleadings, relevant legal
authority, and supplemental documents, and being otherwise fully advised in the
premises, ORDERS and ADJUDGES that United’s Motion for Entitlement to Attorney’s
Fees is hereby GRANTED pursuant to its Proposal for Settlement dated December
collision while driving a 1996 Mercury Villager (the “Mercury”) owned by and
registered to her husband, Luis Perez, and her mother, Luisa Corzo. Perez
allegedly sustained injuries requiring medical treatment, and submitted bills
for payment of her personal injury protection (“PIP”) benefits to United.
However, United denied PIP coverage given that the policy at issue did not
insure the Mercury involved in the accident, and notified Perez that there was
no coverage for the subject loss pursuant to Section 627.736(2)(a) of the
Florida Statutes. See Fla. Stat. § 627.736(2)(a) (2012) (“Any insurer may
exclude benefits . . . [f]or injury sustained by the named insured and relatives
residing in the same household while occupying another motor vehicle owned
by the named insured and not insured under the policy . . .”) (emphasis
added). Suit was subsequently filed in this matter on January 27, 2000, and
United answered the complaint on February 29, 2000 asserting that there was no
coverage for the subject loss.
granted by a predecessor judge of this Court on July 6, 2012. The Court,
analyzing the statutory language of Section 627.736(2)(a), and relying on
Guerrero v. United Auto. Ins. Co., 9 Fla. L. Weekly Supp. 224b (Fla. 11th
Cir. Ct. App. Feb. 12, 2002) and Quality Med. Group, Inc. v. United Auto.
Ins. Co., 16 Fla. L. Weekly Supp. 821a (Fla. 11th Cir. Ct. App. Jul. 8,
2009), found that the subject policy was not intended to cover, and did not in
fact cover, the Mercury driven by Perez. See Perez v. United Auto. Ins. Co.,
19 Fla. L. Weekly Supp. 877b at 3 (Fla. 11th Miami-Dade Cty. Ct. Jul. 11,
2012). Consequently, the clear language of the subject policy excluded coverage.
Id. at 4. Final Judgment for United was subsequently entered on July 27,
2012, and United served its Motion for Entitlement to Attorney’s Fees on August
2, 2012 (“Motion for Entitlement”) seeking an award of attorney’s fees pursuant
to its proposals for settlement.
Proposals for Settlement
settlement pursuant to Section 768.79 of the Florida Statutes and Rule 1.442 of
the Florida Rules of Civil Procedure. The first proposal was submitted on
December 11, 2008 (the “2008 Proposal”) and offered a total amount of
$100.00 for Count I, broken down into $50.00 to settle all PIP benefits at issue
and interest thereon, and $50.00 to resolve all claims for attorney’s fees and
costs pled as part of Count I. The 2008 Proposal further offered $10.00 to
settle all claims for attorney’s fees and costs pled as part or Count II, and
nothing was offered for damages under Count II. A second proposal for settlement
was submitted on April 1, 2011 (the “2011 Proposal,” and together with the 2008
Proposal, the “Proposals”) in the total amount of $100.00. Pursuant to the 2011
Proposal, $50.00 was offered for attorney’s fees and costs, and $50.00 was
offered for PIP benefits. Plaintiff did not accept either proposal for
ANALYSIS AND CONCLUSIONS OF LAW
were not timely filed with the Court before the January 15, 2013 hearing on this
matter and therefore did not comply with Section 768.79 and Rule 1.442; (ii) the
2008 Proposal did not comply with Rule 1.442 because the offer did not contain a
total amount; and (iii) the Proposals were not made in good faith. The Court
shall address each of the aforementioned arguments in turn.
(i) United’s failure to attach the Proposals to its timely filed
Motion for Entitlement does not invalidate the Proposals.
the Proposals and United timely filed its Motion for Entitlement under Rule
1.525. See Fla. R. Civ. P. 1.525 (“Any party seeking a judgment taxing
costs, attorneys’ fees, or both, shall serve a motion no later than 30 days
after filing of the judgment”). However, the Proposals themselves were not filed
with the Court until after the hearing on the Motion for Entitlement.
Plaintiff maintains that pursuant to Rule 1.442(d) and Section 768.79(3)
proposals must be filed prior to the time a party seeks to enforce an
entitlement to attorneys’ fees, and therefore United’s Motion for Entitlement
must be denied. See Fla. R. Civ. P. 1.442(d) (“A proposal shall be served
on the party or parties to whom it is made but shall not be filed unless
necessary to enforce the provisions of this rule.”) (emphasis added);
Fla. Stat. § 768.79(3) (2012) (“The offer shall be served upon the party to whom
it is made, but it shall not be filed unless it is accepted or unless
filing is necessary to enforce the provisions of this section.”)
and cannot be extended by construction. Campbell v. Goldman, 959 So. 2d
223 (Fla. 2007) [32 Fla. L. Weekly S320a] (explaining that strict construction
of the language in Section 768.79 and Rule 1.442 is applicable to both the
substantive and procedural portions of the statute). Consequently, Section
768.79 and Rule 1.442 must be strictly construed in favor of the one against
whom the penalty is imposed. Sarkis v. Allstate Ins. Co., 863 So. 2d 210,
223 (Fla. 2003) [28 Fla. L. Weekly S740a]; see also Willis Shaw Express, Inc.
v. Hilyer Sod, Inc., 849 So. 2d 276, 278 (Fla. 2003) [28 Fla. L. Weekly
S225a] (holding that the language of Rule 1.442 “must be strictly construed
because the offer of judgment statute and rule are in derogation of the common
law rule that each party pay its own fees.”).
from recovering attorney’s fees and costs due to the timing of filing its
proposals for settlement. Frosti v. Creel, 979 So. 2d 912, 916 (Fla.
2008) [33 Fla. L. Weekly S199b]. In Frosti, the Court addressed the
premature filing of a proposal for settlement before the entry of Final
Judgment. Id. The Court noted that “[n]o decision from this Court or a
district court of appeal has defined ‘necessary to enforce’ as it is used in
rule 1.442 or section 768.79.” Id. at 915. More importantly, the Court
went on to hold that “[n]either the rule nor the statute unambiguously defines
when a proposal for settlement should be filed.” (emphasis added)
Id. at 916. Hence, the Court ultimately found that the trial court erred
in denying the timely filed motion for attorney fees under Rule 1.525 based on
the premature filing of proposals for settlement. Id.
when their Motion for Entitlement was heard on January 15, 2013 (after which
this Court reserved ruling), United subsequently cured this deficiency in the
record by filing the Proposals at issue on January 16, 2013 in support of their
Motion. Moreover, although the instant ease is slightly different from Frosti
given that the Proposals were filed a day after the Motion for
Entitlement was heard and not prematurely, Frosti nevertheless stands for
the proposition that “necessary to enforce” as used in Rule 1.442 or Section
768.79 does not mandate that a proposal “must” be filed prior to the time a
party seeks to enforce an entitlement to attorney’s fees. Consequently, strict
construction of the language contained in both Rule 1.442 and Section 768.79
does not invalidate United’s Proposals simply because they were filed shortly
after United’s Motion for Entitlement was heard by this Court.
(ii) United’s 2008 Proposal is unambiguous and therefore
offered pursuant to its 2008 Proposal renders said proposal ambiguous and
invalid pursuant to Rule 1.442(c)(2)(d) and Section 768.79(2)(d). See
Fla. R. Civ. P. 1.442(c)(2)(D) (“A proposal shall . . . state the total
amount of the proposal and state with particularity all nonmonetary terms of the
proposal”); Fla. Stat. § 768.79(2)(d) (2012) (“An offer must . . . [s]tate its
total amount.”). The 2008 Proposal provides, in pertinent part, as follows:
4.) The total amount of this Proposal for Count I is ONE HUNDRED
DOLLARS ($100.00). The amount of $50.00 dollars is offered to settle all PIP
benefits at issue and interest thereon and $50.00 is offered to resolve all
claims for attorney’s fees and costs which are pled as part of the legal claim
in the above styled lawsuit for Count I.
5.) The total amount of this Proposal for Count II is TEN DOLLARS
($10.00). There being no damages in Count II, zero is offered for damages, the
amount of $10.00 dollars is offered to settle all claims for attorney’s fees and
costs which are pled as part of the legal claim in the above styled lawsuit for
2006) [31 Fla. L. Weekly S358a], the Florida Supreme Court addressed the
requirement that a proposal be free of ambiguity. The Court, agreeing with the
Second District’s reasoning in Lucas v. Calhoun, 813 So. 2d 971 (Fla. 2d
DCA 2002) [27 Fla. L. Weekly D453c], explained that Rule 1.442 “ ‘intends for a
proposal for judgment to be as specific as possible, leaving no ambiguities so
that the recipient can fully evaluate its terms and conditions.’ ” Id. at
1079 (quoting Lucas, 813 So. 2d at 973). However, the Court proceeded to
qualify the absence of ambiguity within a settlement proposal by stating as
We recognize that, given the nature of language, it may be
impossible to eliminate all ambiguity. The rule does not demand the impossible.
It merely requires that the settlement proposal be sufficiently clear and
definite to allow the offeree to make an informed decision
without needing clarification. If ambiguity within the proposal could
reasonably affect the offeree’s decision, the proposal will not
satisfy the particularity requirement.
the ambiguity reasonably affects the offeree’s decision. See Nichols.,
932 So. 2d at 1079 (cautioning that Rule 1.442 was designed to “prevent
ambiguity, not breadth,” and is not intended to prevent the use of expansive
language in general releases).
and provide a total sum cannot be said to have “reasonably affected” the
Plaintiff’s ability to make an informed decision. United’s decision to specify
how much it was offering for each individual count instead of giving a total
amount did not create an ambiguity; to the contrary, such itemization enables
the Plaintiff to more accurately determine whether to accept or reject the
proposal. See Miami-Dade County v. Ferrer, 943 So. 2d 288, 290 (Fla. 3d
DCA 2006) [31 Fla. L. Weekly D2977a] (“[A] proposal for settlement should be as
specific as possible, leaving no ambiguities, so that the recipient can fully
evaluate its terms and conditions.”) (quoting Connell v. Floyd, 866 So.
2d 90, 92 (Fla. 1st DCA 2004) [29 Fla. L. Weekly D175b]). Moreover, Paragraph 9
of the 2008 Proposal clearly states that the terms are “non-severable and cannot
be accepted by the Plaintiff without acceptance by the Plaintiff of all the
terms herein.” Connell, 866 So. 2d at 92 (noting that a proposal for
settlement must be clear which of the outstanding claims are to be
extinguished). Consequently, the 2008 Proposal is unambiguous and valid, thereby
satisfying Rule 1.442 and Section 768.79.
(iii) United’s 2008 Proposal was made in good faith.
its entitlement to an award of fees because the Proposals at issue were not made
“in good faith.” See TGI Friday’s Inc. v. Dvorak, 663 So. 2d 606, 612
(Fla. 1995) [20 Fla. L. Weekly S436a] (explaining that a court has the
discretion to disallow an entitlement to an award of attorney’s fees if the
offeror’s intention have been shown to be “not in good faith”). The “issue of
‘good faith,’ is by its very nature, determined by the subjective
motivations and beliefs of the pertinent actor . . . so long as the
offeror has a basis in known or reasonably believed fact to conclude that the
offer is justifiable, the ‘good faith’ requirement has been satisfied.” Dept.
of Highway Safety Motor Vehicles v. Weinstein, 747 So. 2d 1019, 1021 (Fla.
3d DCA 1999) [24 Fla. L. Weekly D2799b] (emphasis added); see also Donohoe v.
Starmed Staffing, Inc., 743 So 2d 623, 624 (Fla. 2d DCA 1999) [24 Fla. L.
Weekly D1282b] (“The obligation of good faith insists that the offeror have some
reasonable foundation on which to base an offer.”) (citation omitted). Nominal
offers, such as the Proposals in the instant case, may be made in good faith:
Offers, nominal or otherwise, must bear a reasonable relationship to
the amount of damages or a realistic assessment of liability. 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 nominal. The offer need not equate
with the total amount of damages that might be at issue.
4th DCA 2006) [31 Fla. L. Weekly D1445a] (emphasis added) (citations omitted);
see also Weinstein, 747 So. 2d at 1020 (explaining that although an offer
may be nominal, if the record demonstrates that at the time the offer was made
the offeror had a reasonable basis to conclude exposure was nominal or it was
not liable at all, the case may be “worth no more than a nuisance amount to
Proposal, the Court must consider all the surrounding circumstances when the
offer was made. United contends that the following circumstances provided it
with a reasonable basis to conclude it was not liable, thereby prompting the
extension of a nominal offer: (1) the Guerrero decision, coupled with
Plaintiff’s deposition testimony that the vehicle involved in the subject loss
was owned by Perez’s mother, the named insured, and was not insured by United;
(2) the Quality Med. Group decision; and (3) the granting of United’s
original Motion for Summary Judgment as to coverage by a predecessor judge of
Guerrero and his mother were named insureds of 1990 Ford Probe owned by his
mother, and Guerrero was injured while driving a 1986 Mercury Sable which was
not insured by United. Guerrero, 9 Fla. L. Weekly Supp. 224b at 1.
United, claiming that the 1986 Mercury Sable was owned by Guerrero’s mother and
not insured by United, denied coverage pursuant to Section 627.736(2)(a) of the
Florida Statutes. The Eleventh Judicial Circuit for Miami-Dade County, in its
appellate capacity, recognized that summary judgment pursuant to Section
627.736(2)(a) would be proper if Guerrero’s mother owned the 1986 Mercury Sable,
but reversed the entry of summary judgment due to a disputed question of
material fact. Id. at 2.
been issued and United had good reason to believe that the 1996 Mercury vehicle
at issue in the instant case was owned by Perez’s mother. This reasonable
belief had been established at Plaintiff’s own deposition, where Perez
repeatedly asserted and admitted the 1996 Mercury vehicle involved in the
accident was owned by her mother, the named insured, and was not insured by
United. See Perez, 19 Fla. L. Weekly Supp. 877b at 3. Moreover, the
policy of insurance applicable to Perez unambiguously defined “owner” as one who
holds “legal title,” thereby further strengthening United’s belief that its
denial of coverage under Section 627.736(2)(a) would ultimately be upheld.
Id. Consequently, the holding in Guerrero, when combined with the
facts elicited by United, created a reasonable foundation that exposure in the
instant case would be nominal or non-existent.
for United’s 2008 Proposal. Like Guerrero, the case dealt with a
plaintiff who sustained injuries while driving a 1993 Mitsubishi owned by and
registered to his wife, which was not insured pursuant to the applicable policy
of insurance. See Quality Med. Group, 15 Fla. L. Weekly Supp. 98a at 1.
Explaining that Section 627.736(2)(a) provides “no coverage for injury sustained
by the named insured while occupying another motor vehicle owned by the named
insured and not insured under the policy,” the Court granted final summary
judgment regarding coverage in favor of United. Id. at 3. The Court went
on to cite Guerrero in support of its ruling, while also noting that
“owner” was unambiguously defined under the insurance policy at issue as the
person holding legal title to the vehicle. Id. Consequently, Quality
Med. Group reinforced United’s reasonable belief that there was no coverage
for the loss in the case sub judice, thereby prompting the 2008 Proposal.
received a favorable ruling on its initial Motion for Summary Judgment regarding
coverage from a predecessor judge of this Court. On February 27, 2002, the
Honorable Jeffrey Swartz granted Defendant’s Motion for Summary Judgment,
finding that Perez was not afforded coverage under United’s policy of insurance.
However, said Order was subsequently set aside given Plaintiff’s filing of an
amended complaint prior the entry of a final judgment, as Judge Swartz decided
to allow Perez an opportunity to argue that coverage existed under Plaintiff’s
theory that the subject policy should be reformed to include Perez as a named
original order granting United’s Motion for Summary Judgment under Section
627.736(2)(a) clearly contributed to United’s reasonable belief that it would
ultimately prevail on the issue of coverage. When combined with all of the
aforementioned circumstances, the Court concludes that the 2008 Proposal was
made in good faith, and need not address the merits of the 2011 Proposal. See
Bosem v. Commerce Indus. Ins. Co., 35 So. 3d 944, 946 (Fla. 3d DCA 2010) [35
Fla. L. Weekly D892a] (holding that where no evidence is presented that the
offer was not made in good faith, the movant is entitled to a fee award).
is GRANTED pursuant to its Proposal for Settlement dated December 11, 2008.
* * *