Stewart v. Progressive American Ins. Co.

• Decision Date: 16 March 1992
• Docket Number: No. 91-1364,91-1364
• Citation: Stewart v. Progressive American Ins. Co., 595 So.2d 272 (Fla. App. 1992)
• Parties: 17 Fla. L. Weekly D733 Cory P. STEWART, Appellant, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 272

595 So.2d 272

17 Fla. L. Weekly D733

Cory P. STEWART, Appellant, v.PROGRESSIVE AMERICAN INSURANCE COMPANY, Appellee.

No. 91-1364.

District Court of Appeal of Florida First District.

March 16, 1992.

Erick M. Drlicka and Matt E. Dannheisser, Emmanuel, Sheppard, & Condon, Pensacola, for appellant.

Thomas R. Jenkins, Beggs & Lane, Pensacola, for appellee.

ALLEN, Judge.

The appellant challenges an order granting the appellee's motion to strikethe appellant's request for sanctions under Florida Rule of Civil Procedure 1.442, and various offers of judgment filed in connection with the request for sanctions.Because one of the offers of judgment satisfies the requirements of rule 1.442(h)(1)(B)(ii), we conclude that the court should not have granted the motion to strike as it relates to this offer, and should have considered the request for sanctions.

After the appellant filed an action against the appellee for uninsured motorist benefits, he served several offers of judgment within the time required by rule 1.442(b).The appellee did not accept these offers, and the action proceeded to trial.The appellant obtained a jury verdict in excess of the policy limit, and the court then entered a final judgment by which the appellant was awarded damages at the policy limit of $10,000.

Rule 1.442(h)(1)(B)(ii) authorizes the court to impose sanctions when the damages awarded are more than 125% of a refused offer to accept payment.The appellant contends that his initial offers for $10,000 meet this criteria because the jury verdict was more than 125% of the offers.But the rule contemplates sanctions upon a disproportionate judgment, seeThe Florida Bar Re Amendment to Rules of Civil Procedure, Rule 1.442 (Offer of Judgment), 550 So.2d 442(Fla.1989), and the "damages awarded" are properly measured by the judgment.

Alternatively, the appellant contends that the offer may be compared to the total amount of the judgment, including the assessment of costs.However, costs are merely an incident of the actual damages, rather than damages in themselves.See generally, River Road Const. Co. v. Ring Power Corp., 454 So.2d 38(Fla. 1st DCA1984).Although River Road involved a different factual context and an earlier version of rule 1.442, the court relied on the statutory allowance of costs as described in Golub v. Golub, 336 So.2d 693(Fla. 2d DCA1976).Golub establishes that costs are not a part of the damages claimed, and River Road adopted this theory to approve an allowance of costs in addition to the amount stated in an accepted offer.Insofar as costs are allowed as an...