Nichols v. State Farm Mut.

• Decision Date: 13 June 2003
• Docket Number: No. 5D01-3851.,5D01-3851.
• Parties: Shannon NICHOLS, Appellant, v. STATE FARM MUTUAL, Etc., Appellee.
• Court: Florida District Court of Appeals

851 So.2d 742

Shannon NICHOLS, Appellant, v. STATE FARM MUTUAL, Etc., Appellee.

No. 5D01-3851.

District Court of Appeal of Florida, Fifth District.

June 13, 2003.

Certification Denied August 11, 2003.

Thomas P. Hockman, of Law Offices of Hockman, Hockman & Hockman, Winter Park, for Appellant.

Philip D. Parrish, of Philip D. Parrish, P.A., Miami, Amicus Curiae, The Academy of Florida Trial Lawyers, on behalf of Appellant.

Kenneth P. Hazouri, of Drage, de Beaubien, Knight, Simmons, Mantzaris & Neal, LLP, Orlando, for Appellee.

TORPY, J.

Appellant ("Insured") challenges an order of the county court assessing attorney's fees and costs against her in favor of Appellee ("Insurer") after she did not prevail in her claim for damages under the personal injury protection ("PIP") provision of her insurance policy. Fees were awarded under the offer of judgment statute, section 768.79, Florida Statutes (1999). Insured contends that the statute does not apply to "PIP" claims. Alternatively, Insured contends that the proposal for settlement was not valid because it did not comply with the proposal for settlement rule. The county court rejected both contentions but did certify the following issue to this court as a question of great public importance:

Are proposals for settlement served pursuant to section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442 in actions to recover personal injury benefits valid and enforceable or applicable to PIP suits?

We exercise our discretionary jurisdiction to answer the question and review the underlying cause. Fla. R.App. P. 9.030(b)(4)(A). We rephrase the certified question, however, as follows:

May an insurer recover attorney's fees under rule 1.442, Florida Rules of Civil Procedure, and section 768.79, Florida Statutes, in an action brought by its insured to recover under a personal injury protection policy?

We answer the question in the affirmative. However, because we agree with Insured's alternative argument — that the proposal here was not valid — we reverse the judgment of the lower court.

Insured filed a complaint in county court alleging that she suffered injuries in an automobile accident and that Insurer, with whom she had a PIP policy, failed to pay for medical treatment and expenses arising from the injuries she suffered. Insurer defended on the ground that Insured had unreasonably refused to submit to an independent medical exam, a condition precedent to the recovery of PIP benefits.

Insurer served upon Insured a proposal for settlement in the amount of $250.00. Among the conditions contained within the proposal was a requirement that Insured "execute a general release in favor of State Farm, which will be expressly limited to all claims, causes of action, etc., that have accrued through the date of [Insured's] acceptance of this proposal."

The case proceeded to jury trial, and verdict was rendered in favor of Insurer. Because the judgment was of "no liability," pursuant to section 768.79(1), Florida Statutes, the trial court awarded to Insurer its reasonable attorneys fees and costs incurred since the offer was served, in an amount totalling $23,199.00.

Although thoughtful policy arguments have been raised and cogently argued by Insured and The Academy of Florida Trial Lawyers, who appeared as amicus curiae, we believe these arguments are more appropriately addressed to the Legislature. The disposition of this case turns not on what we think is the preferred policy but on what the Legislature has clearly and unambiguously stated in the offer of judgment statute wherein it provides that it applies to "any civil action for damages filed in the courts of this state." We agree with the holding, and generally agree with the reasoning, of our sister court in U.S. Security Insurance Co. v. Cahuasqui, 760 So.2d 1101 (Fla. 3d DCA 2000), Rev. Dismissed as Improvidently Granted by 796 So.2d 532 (Fla.2001), which addresses each of the points herein raised by the litigants and amicus curiae.

Turning our attention to the second issue, we conclude that the proposal here was defective in form and content under rule 1.442, Florida Rule of Civil Procedure. Rule 1.442 provides in pertinent part as follows:

(c) Form and Content of Proposal for Settlement.

(1) A proposal shall be in writing and shall identify the applicable Florida law under which it is being made.

(2) A proposal shall:

(A) name the party or parties making the proposal and the party or parties to whom the proposal is being made;

(B) identify the claim or claims the proposal is attempting to resolve;

(C) state with particularity any relevant conditions;

(D) state the total amount of the proposal and state with particularity all nonmonetary terms of the proposal;

* * *

(Emphases added).

Here, the proposal for settlement required, among other things, that Insured execute a "general release." Although the general release was not included, the proposal stated that the release would include all "claims, causes of action, etc., that have accrued through the date" on which the Insured accepted the proposal. The proffered release was not limited, however, to claims or causes of action that were brought (or that were required to have been brought) in the instant lawsuit. Because Insured also had an outstanding claim against Insurer for uninsured motorist benefits, which claim was not a part of the instant case, Insured argued the offer was not made in good faith and that acceptance of the offer would have extinguished her UM claim.¹ Insurer countered this argument by offering evidence that it did not intend to require the release of the UM claim as a condition of acceptance of the offer.² Insurer's counsel testified that he was unaware of the existence of the UM claim at the time he served the proposal for settlement and that had the proposal for settlement been accepted, his client would not have required that the release include the UM claim. Furthermore, counsel testified that, if Insured's counsel had called him, he would have clarified his client's intent.

The trial court apparently accepted the testimony, thereby avoiding a finding of bad faith.³ By construing the offer in this manner, however, although possibly avoiding the bad faith problem, another problem was created in that the proposal was rendered ambiguous and thereby contravened the express language of the rule and the policy behind the rule and statute.

Rules 1.442(c)(2)(C) and (D), Florida Rules of Civil Procedure, provide that relevant conditions and all nonmonetary terms of the offer be stated with particularity. The terms of any proffered release are subject to this rule. Zalis v. M.E.J. Rich Corp., 797 So.2d 1289 (Fla. 4th DCA 2001); Gulf Coast Transp., Inc. v. Padron, 782 So.2d 464 (Fla. 2d DCA 2001). This requirement of particularity is fundamental to the purpose underlying the statute and rule. A proposal for settlement is intended to end judicial labor, not create more. Lucas v. Calhoun, 813 So.2d 971 (Fla. 2d DCA 2002); Jamieson v. Kurland, 819 So.2d 267 (Fla. 2d DCA 2002) For this reason, a proposal for settlement should be as specific as possible, leaving no ambiguities so that the recipient can fully evaluate its terms and conditions. Id. at 973 (citing United Servs. Auto. Ass'n v. Behar, 752 So.2d 663, 665 (Fla. 2d DCA 2000)). Moreover, the proposal should be capable of execution without the need for further explanation or judicial interpretation. Id. The rule and statute must be strictly construed because they are in derogation of the common law. Willis Shaw Express, Inc. v. Hilyer Sod Inc., 849 So.2d 276, 2003 WL 1089304 (Fla. March 13, 2003).

Where, as here, a release is requested as a condition of the proposal, either the proposed language of the release or a summary of the substance of the release being sought should be included within the proposal to comply with the requirement that it be "particular." Fla. R. Civ. P. 1.442(c)(2)(C), (D). The terms and conditions of the proposal should be devoid of ambiguity, patent or latent. Moreover, use of overly broad release language or use of vague words like "etcetera" in proposed release language ordinarily will not satisfy the particularity requirement of the rule. See Zalis, 797 So.2d at 1290,

(requirement of mutual release against any future action fails to comply with rule).

Because the intent of this release condition could not be determined without resort to clarification or judicial interpretation, we find that it was not sufficiently particular and reverse the judgment awarding attorney's fees.

We certify to the Florida Supreme Court, as a question of great public importance, however, the first question addressed in this opinion, to-wit:

May an insurer recover attorney's fees under rule 1.442, Florida Rules of Civil Procedure, and section 768.79, Florida Statutes, in an action by its insured to recover under a personal injury protection policy?

REVERSED; QUESTION CERTIFIED.

GRIFFIN, J., concurs.

SAWAYA, J. concurring in part; dissenting in part, with opinion.

SAWAYA, J., concurring in part, dissenting in part.

I concur with the majority that the order awarding attorney's fees must be reversed. However, I respectfully disagree that the offer of judgment statute found in section 768.79, Florida Statutes, applies to PIP cases. In my view, application of section 768.79 to PIP cases would completely thwart and circumvent the purposes of the Florida Motor Vehicle No-Fault Law⁴ (the No-Fault Act) and PIP benefits. Moreover, I believe that the Legislature never intended a suit to recover PIP benefits to be an action for damages under section 768.79. Although I concur that this issue should be certified to the Florida Supreme Court, I believe that the question certified should be rephrased as follows to reflect the true nature of a suit to recover PIP benefits and answered in the negative:

May an insurer recover attorney's fees under rule 1.442, Florida

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