Mendez v. Bankers Ins. Co., 96-1163
| Decision Date | 21 May 1997 |
| Docket Number | No. 96-1163,96-1163 |
| Citation | 696 So.2d 1210 |
| Parties | 22 Fla. L. Weekly D1321 Oscar MENDEZ and Rosario Mendez, Appellants, v. BANKERS INSURANCE COMPANY, a Florida corporation, Appellee. |
| Court | Florida District Court of Appeals |
Burton E. Burdick of Burton E. Burdick, P.A., Fort Lauderdale, for appellants.
Joseph J. Chase of Flanagan & Maniotis, P.A., West Palm Beach, for appellee.
The Mendezes, having recovered a judgment against their insurer as a result of storm damage to their roof, appeal an order denying their motion for attorney's fees. The trial court concluded that the Mendezes were not the prevailing party because their recovery was lower than an offer of judgment made by the insurer. We affirm.
The dispute between the Mendezes and the insurer was about whether the existing roof could be repaired, or whether the damage was so extensive as to require a new roof. The insurer served an offer of judgment in the amount of $3,501, "exclusive of attorney's fees," which the Mendezes did not accept. The jury awarded the Mendezes $1,544 which entitled them to a judgment for $1,294, because of the $250 deductible.
After entry of the judgment on February 20, 1996, the Mendezes moved for attorney's fees on the ground that they had prevailed against their insurer and were thus entitled to fees under section 627.428, Florida Statutes (1992). The trial court denied the motion because the recovery was less than the offer and the Mendezes were therefore not prevailing parties. This appeal is from that order, entered on April 1, 1996, the notice of appeal having been filed on April 5, 1996.
The insurer moved for attorney's fees based on its offer of judgment, and on May 16, 1996 the trial court awarded the insurer attorney's fees. That order has not been appealed.
The Mendezes now argue that the insurer's offer of judgment was invalid because of the provision in the offer stating that it was "exclusive of attorney's fees," citing State Farm Life Insurance Co. v. Bass, 605 So.2d 908 (Fla. 3d DCA 1992). In that case the court held that a similar offer of judgment did not comply with our former offer of judgment rule 1.442(c)(2), because the rule required that an offer of judgment "state the total amount of the offer." Section 768.79(2)(d) has that same requirement.
Although the insurer's offer of judgment may have been invalid under Bass, the Mendezes have not appealed the order assessing...
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Scottsdale Ins. Co. v. DeSalvo
...Services v. FP, Inc., 659 So.2d 1120 (Fla. 3d DCA 1995), review denied, 669 So.2d 250 (Fla.1996), and Mendez v. Bankers Insurance Co., 696 So.2d 1210 (Fla. 4th DCA 1997). See Art. V, § 3(b)(3), Fla. Const. In both Baker and Mendez, the district courts concluded that an insured may only reco......