Rodriguez v. Scottsdale Ins. Co.

• Decision Date: 05 December 2022
• Docket Number: 21-CV-20506-COOKE/DAMIAN
• Citation: Rodriguez v. Scottsdale Ins. Co., 21-CV-20506-COOKE/DAMIAN (S.D. Fla. Dec 05, 2022)
• Parties: REGINO RODRIGUEZ, As Trustee of the RMR Rodriguez Revocable Trust, Plaintiff, v. SCOTTSDALE INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Florida

REGINO RODRIGUEZ, As Trustee of the RMR Rodriguez Revocable Trust, Plaintiff, v. SCOTTSDALE INSURANCE COMPANY, Defendant.

No. 21-CV-20506-COOKE/DAMIAN

United States District Court, S.D. Florida

December 5, 2022

REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION FOR ATTORNEY'S FEES AND COSTS[ECF NO. 63]

MELISSA DAMIAN, UNITED STATES MAGISTRATE JUDGE.

THIS CAUSE is before the Court on Defendant, Scottsdale Insurance Company's, Verified Motion to Tax Attorney's Fees and Costs(the “Motion”), filed September 22, 2022.[ECF No. 63].The Motion was referred to the undersigned by the Honorable Kathleen M. Williams, United States District Judge, on behalf of the Honorable Marica G. Cooke, United States District Judge.[ECF No. 65].

THE COURT has reviewed the Motion, the evidence provided by Defendant in support of its request for fees and costs, the pertinent portions of the record, and the legal authorities governing the dispute and is otherwise fully advised in the premises.Plaintiff, Regino Rodriguez, as trustee of the RMR Rodriguez Revocable Trust, did not respond to the Motion, and the time to do so has passed.After review of the foregoing the undersigned hereby RECOMMENDS that Defendant's Motion be GRANTED as set forth below.

I.BACKGROUND

Plaintiff filed the Complaint on December 9, 2020, in the Circuit Court of the Eleventh Judicial Circuit, in and for Miami-Dade County, Florida, alleging one count for breach of contract and seeking damages.[ECF No. 1-1].Plaintiff alleged that Defendant breached an insurance policy (the “Policy”) by failing to provide coverage for damage allegedly sustained to his property in Miami, Florida (the “Property”) due to Hurricane Irma.Plaintiff sought damages based on Defendant's alleged breach.On February 5, 2021, Defendant removed the matter to this Court based on diversity jurisdiction.[ECF No. 1].

On May 27, 2021, Defendant served Plaintiff with a Proposal for Settlement (the “Proposal of Settlement” or the “Offer of Judgment”)[ECFNo. 63-1], which Plaintiff did not accept.The total amount offered in the Proposal for Settlement was $7,500.00.Id.On September 10, 2021, Defendant filed a Motion for Summary Judgment, arguing that it did not breach the Policy because Plaintiff failed to give prompt notice of the alleged damages at issue.[ECF No. 40].The Court struck Plaintiff's Response to Defendant's Motion for Summary Judgment twice due to Plaintiff's failure to comply with the Federal Rules of Civil Procedure, which, consequently, caused Defendant to have to prepare three separate replies.[ECF Nos. 46, 55, 59].The Court ultimately granted Defendant's Motion for Summary Judgment on August 23, 2022.[ECF No. 62].

On September 22, 2022, Defendant filed the Motion now before the Court seeking reasonable attorney's fees and costs pursuant to Federal Rule of Civil Procedure 54(d)andSection 768.79, Florida Statutes.[ECF No. 63].Defendant seeks to recover all costs incurred in the case, as well as fees incurred since May 27, 2021, the date of service of its Proposal for Settlement.Id.Defendant seeks a total of $42,242 in attorney's fees and $3,683.50.02 in costs.Id.To support the fee request, Defendant attached a copy of the Proposal for Settlement, invoices of its incurred costs, and the deposition transcript of Plaintiff's causation expert, Grant Renne.[ECFNos. 63-1, 63-2, 63-3].Defendant also submitted a declaration of one of its attorneys, which included a copy of her professional biography, the law firm's billing invoices for this matter, and a copy of an audit of the firm's invoices conducted by a third-party legal billing auditor.[ECF Nos. 64, 64-1, 64-2, 64-3].

Although the Court could grant the Motion by default under Southern District of Florida LocalRule 7.1(c) because Plaintiff failed to respond, the undersigned has reviewed the Motion on its merits to ensure it is properly granted.SeeS.D. Fla. LocalRule 7.1(c)(“For all motions . . . each party opposing a motion shall serve an opposing memorandum of law no later than fourteen (14) days after service of the motion.Failure to do so may be deemed sufficient cause for granting the motion by default.”);Baker v. Miami-Dade County, No. 05-CV-20544, 2006 WL 566720, at *1(S.D. Fla.Mar. 1, 2006)(pointing out that the motion for fees pursuant to Section 768.79 may be granted by virtue of the plaintiff's failure to respond to the motion).

II.ANALYSIS

A.Entitlement To Award And Good Faith Of Offer Of Judgment

1.Entitlement Under Section 768.79, Florida Statutes

The undersigned first considers whether Defendant is entitled to recover attorney's fees and costs under Section 768.79 and whether the Offer of Judgment was made in good faith.

Under Section 768.79, Florida Statutes, a defendant who prevails in a civil action for damages shall be entitled to recover reasonable attorney's fees and costs incurred if the defendant filed an offer of judgment that was not accepted by the plaintiff within 30 days.Fla. Stat. § 768.79(1).The defendant shall be entitled to recover reasonable attorney's fees and costs if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than the offer.Id.Where the defendant is entitled to recover attorney's fees and costs, the defendant shall be awarded reasonable costs and attorney's fees incurred from the date the offer of judgment was served.Fla Stat. § 768.79(6)(a).However, even if a defendant is entitled to recover attorney's fees and costs, the court may, in its discretion, determine that the offer was not made in good faith and may disallow an award of fees and costs.Fla. Stat. § 768.79(7)(a).

Based on the record, the undersigned finds that Defendant is entitled to recover fees and costs because the statutory prerequisites of Section 768.79 have been satisfied.SeeFla. Stat. § 768.79;Ryan v. Lobo De Gonzalez, 841 So.2d 510, 520-21(Fla. 4th DCA2003)(explaining that Section 768.79 creates a right to attorney's fees if the party satisfies the prerequisites of (1) serving a demand or offer for judgment and (2) recovering a judgment at least 25 percent more or less than the judgment).On May 27, 2021, Defendant served Plaintiff with a Proposal for Settlement, which Plaintiff did not accept.Because Plaintiff has not disputed the validity of the Proposal for Settlement, the undersigned finds that it satisfies the requirements of Section 768.79.

Further, on August 23, 2022, the Court granted Defendant's Motion for Summary Judgment, which is a judgment of no liability under Section 768.79.Therefore, the undersigned finds that Defendant satisfied the statutory prerequisites of Section 768.79 and is entitled to recover reasonable attorney's fees and costs, unless the Court determines that the Offer of Judgment was not made in good faith.SeeFla. Stat. § 768.79;see alsoTiara Condo. Assn, Inc. v. Marsh USA, Inc.,697 F.Supp.2d 1349, 1352-54(S.D. Fla.2010)(finding that the defendant was entitled to an award where summary judgment was granted in favor of the defendant and the plaintiff did not object to the validity of the offer under Section 768.79).The undersigned now turns to the matter of good faith.

The sole basis on which a court may disallow entitlement to an award of fees and costs under Section 768.79 after an offer of judgement is found to satisfy the statutory requirements is if it determines that the offer of judgment was not made in good faith.McMahan v. Toto, 311 F.3d 1077, 1083(11th Cir.2002);Ryan, 841 So.2d at 521.The burden is on the offeree to prove that the offeror was not acting in good faith when making the offer.Toto, 311 F.3d at 1083;Ryan, 841 So.2d at 521.

Here, Defendant made an offer of judgment of $7,500 to Plaintiff.The undersigned finds that the offer was more than nominal, although significantly less than the amount of damages sought by Plaintiff in the lawsuit, which was in excess of $90,000.Even if the offer was considered nominal, nominal offers are not alone determinative of bad faith.Zendejas v. Redman, 334 F.Supp.3d 1249, 1258(S.D. Fla.2018).While nominal offers can be suspect if they are not based upon an assessment of liability and damages, they can be valid if the offeror had a reasonable basis at the time of the offer to conclude that their exposure in the case was nominal.Toto, 311 F.3d at 1083;Ryan, 841 So.2d at 521.The good faith requirement does not “demand that an offeror necessarily possess, at the time he makes an offer or demand under the statute, the kind or quantum of evidence needed to support a judgment.The obligation of good faith merely insists that the offeror have some reasonable foundation on which to base an offer.”Toto, 311 F.3d at 1083(citingSchmidt v. Fortner, 629 So.2d 1036, 1039(Fla. 4th DCA1993)).

In its Motion, Defendant asserts that it was confident that Plaintiff was not entitled to coverage under the Policy because Plaintiff failed to give notice of the alleged damages for nearly three years.Thus, Defendant argues that it had a reasonable basis to conclude that its exposure was minimal and that it, therefore, had a reasonable foundation on which to base its Proposal of Settlement.

The undersigned agrees that, based on the express language of the Policy and governing law regarding prompt notice of loss under insurance policies, Defendant had a reasonable basis at the time of the offer to conclude that its exposure was minimal.There was a high likelihood that Defendant would prevail on the breach of contract claim and, thus, a reasonable basis for Defendant to make an offer in good faith.Based on the nominal exposure, Defendant had a reasonable foundation on which to base its offer of $7,500.See alsoTiara Condo. Ass'n...