Hartford Cas. Ins. Co. v. Silverman, 96-1305

• Court: Florida District Court of Appeals
• Writing for the Court: Before SCHWARTZ; FLETCHER
• Citation: Hartford Cas. Ins. Co. v. Silverman, 689 So.2d 346 (Fla. App. 1997)
• Decision Date: 12 February 1997
• Docket Number: No. 96-1305,96-1305
• Parties: 22 Fla. L. Weekly D407 HARTFORD CASUALTY INSURANCE COMPANY, Appellant, v. Florence P. SILVERMAN, Appellee.

Page 346

689 So.2d 346

22 Fla. L. Weekly D407

HARTFORD CASUALTY INSURANCE COMPANY, Appellant, v. Florence P. SILVERMAN, Appellee.

No. 96-1305.

District Court of Appeal of Florida Third District.

Feb. 12, 1997.

Rehearing Denied March 26, 1997.

Conroy, Simberg, Lewis & Ganon and Hinda Klein, Hollywood, for appellant.

Brian R. Hersh, Robert G. Bello, Miami, for appellee.

Before SCHWARTZ, C.J., and GERSTEN and FLETCHER, JJ.

FLETCHER, Judge.

Hartford Casualty Insurance Company [insurer] appeals the denial of attorney's fees in an action for breach of contract. Finding that the insurer's offer of settlement was not made in compliance with section 768.79, Florida Statutes (1993), we affirm.

The insured, Florence P. Silverman [Silverman], filed suit against the insurer seeking approximately $256,000 in damages, alleging that the insurer had breached its insurance policy with her by failing to pay for a theft loss and hurricane claim. Silverman also filed a bad faith claim and sought punitive damages. This claim was abated until after the trial on breach of contract. The insurer counterclaimed, seeking both damages and rescission of the insurance contract. In conjunction with the insurer's rescission claim and pursuant to an agreed order, the insurer deposited $9,000 into the court registry, an amount representing Silverman's premium payments.

During the litigation the insurer served an offer of judgment which cited section 768.79, Florida Statutes (1993), and provided:

"Defendants offer to allow Judgment to be taken against them in the total amount of $500.00 inclusive of attorneys [sic] fees and costs, in exchange for a full release in favor of HARTFORD CASUALTY INSURANCE COMPANY, TIM ALLEN and RUTH DUNBAR as agent and/or representatives of HARTFORD CASUALTY INSURANCE COMPANY, of all claims FLORENCE P. SILVERMAN has or may have arising out of the insurance policy which is the subject matter of this litigation and/or the investigation into the claim for benefits under said policy which is the subject of this litigation."

Appellant's App. at A-67.

The offer was not accepted by Silverman. The cause went to trial and the jury returned its verdict in favor of the insurer on all claims, finding against Silverman on her breach of contract claims and finding for the insurer on its breach of contract and fraud/rescission claim. Final judgment was entered for the insurer, after which the insurer filed its offer of judgment and moved for attorney's fees pursuant to section 768.79, Florida Statutes (1993). ¹

Silverman opposed the award of attorney's fees on the basis that the offer of judgment was defective. Her principal contention was that the insurer's offer of judgment was so indefinite, ambiguous and incomplete with respect to the essential terms of a proposed settlement that it did not qualify as a valid offer of judgment. Missing from the offer, according to Silverman, were provisions for the resolution of the insurer's counterclaims and the disposition of the $9,000 in the court registry.

The insurer, on the other hand, contends that its offer was complete and unambiguous in that the statute does not require an offer of judgment, if accepted, to resolve all issues between a plaintiff and a defendant, but only those addressed by the offer. Thus, it contends, a counterclaim can go unresolved by an offer without affecting the offer's validity as to the original claim. Alternatively, the insurer contends that its...