US Sec. Ins. Co. v. Cahuasqui

Decision Date05 July 2000
Docket NumberNo. 3D98-3337.,3D98-3337.
Citation760 So.2d 1101
PartiesU.S. SECURITY INSURANCE CO., Appellant, v. Liliana CAHUASQUI, Appellee.
CourtFlorida District Court of Appeals

Michael A. Nuzzo, Miami; Fazio, Dawson, DiSalvo, Cannon, Abers, Podrecca & Fazio and David B. Pakula (Ft.Lauderdale), for appellant.

Lidsky, Vacarro & Montes and Juan C. Montes, Hialeah, for appellee.

Kutner, Rubinoff, Bush & Lerner and Susan Lerner, Miami; Barbara Green, Coral Gables, for The Academy of Florida Trial Lawyers as amicus curiae.

Before COPE, GREEN, and FLETCHER, JJ.

CORRECTED OPINION

GREEN, J.

This is an appeal from a final order of the county court denying an award of attorney's fees to the defendant/appellant, U.S. Security Insurance Company ("US Security"), in a case where the plaintiff/appellee, Liliana Cahuasqui ("Cahuasqui"), sought but was denied personal injury protection ("PIP") benefits. The trial court certified the following question to us as one of great public importance.

Is the Proposal for Settlement/Offer of Judgment Statute, F.S. 768.79, applicable to PIP actions?

We have jurisdiction pursuant to rule 9.030(b)(4)(A), Florida Rules of Appellate Procedure.1 Because we find the offer of judgment statute, section 768.79, Florida Statutes (1997), to be applicable to PIP claims, we answer the certified question in the affirmative. We therefore reverse and remand this case for a hearing on attorney's fees consistent with the opinion below.

Cahuasqui was allegedly injured in an automobile accident which occurred on October 3, 1995. Cahuasqui made a claim for PIP benefits under a U.S. Security insurance policy that had been issued to her father, Milton Cahuasqui. US Security denied Cahuasqui's claim because Mr. Cahuasqui's application for PIP insurance had not listed his daughter as an additional resident driver.

Subsequently, Cahuasqui filed suit against U.S. Security seeking recovery of PIP benefits. US Security answered and raised material misrepresentation as a defense.2

On June 13, 1997, the trial court noticed the case for a jury trial on August 26, 1997. On June 16, 1997, U.S. Security served its proposal for settlement/offer of judgment, pursuant to rule 1.442, Florida Rules of Civil Procedure3 and section 768.79, Florida Statutes (1997),4 in the amount of $1,501.00. Specifically, U.S. Security's proposal for settlement/offer of judgment provided:

PURSUANT TO RULE 1.442 [Eff. 1-1-97] and/or Florida Statute § 768.79, the Defendant, U.S. Security Insurance Company, hereby serves this offer to the Plaintiff, Liliana Cahuasqui, to allow judgment to be taken against said Defendant in the amount of One Thousand Five Hundred One Dollars ($1,501.00) inclusive of PIP benefits, interest, penalties, costs and attorney's fees.

Cahuasqui did not accept the offer.

The trial judge bifurcated the trial on the liability and damage issues. The jury found that Milton Cahuasqui had made a material misrepresentation on his application for insurance with U.S. Security, and therefore Liliana was not entitled to PIP benefits under U.S. Security's policy. Accordingly, the trial court entered final judgment in favor of U.S. Security, reserving jurisdiction over the issue of attorney's fees and costs.

US Security filed a motion for attorney's fees based on its proposal for settlement/offer of judgment. The trial court initially granted U.S. Security's motion for attorney's fees. Cahuasqui thereafter filed a motion to strike U.S. Security's offer of judgment on grounds that section 768.79, Florida Statutes, conflicts with section 627.428, Florida Statute5 (the insurance attorney's fee statute), and therefore the court's grant of U.S. Security's attorney's fees was unconstitutional.

A hearing regarding U.S. Security's entitlement to attorney's fees and Cahuasqui's motion to strike U.S. Security's offer of judgment fees was held June 11, 1998. Ultimately, the trial court reversed itself and denied U.S. Security's motion for attorney's fees, finding that the offer of a judgment statute was inapplicable to PIP actions, but certified this question to us for our consideration. We accepted jurisdiction.

At the outset, we note that the issue of whether the offer of judgment statute applies to PIP actions is one of first impression in this state.6 Prior to 1990, the offer of judgment statute provided that it applied in "any action to which this part applies."7 However, in 1990, the legislature amended the offer of judgment statute so that it applied "[i]n any civil action for damages filed in the courts of this state." (emphasis added). Ch. 90-119 § 48, Laws of Fla. The plain meaning of the statute, as amended, is that it applies to all civil actions for damages. See Beyel Bros. Crane & Rigging Co. of S. Fla., Inc. v. Ace Transp., Inc., 664 So.2d 62, 64 (Fla. 4th DCA 1995)

.

[T]here is no ambiguity in the words, `in any civil action for damages.' The plain and ordinary meaning of these words is to cover any claim by a party in a civil action in which money damages are sought from another party to the action. They convey a clear meaning sweeping in all civil actions in which one party seeks damages from another party. The right to damages may arise under tort law; it may arise under contract law; it may arise under property law. If the party seeks damages from another party, then the claim is covered by section 768.79's broad phrase, `civil action for damages'.

Id. (emphasis added).

Moreover, statutes should not be interpreted in a manner that would deem the legislative action useless. See Ellis v. State, 622 So.2d 991 (Fla.1993)

. In fact, the responsibility of the court when construing a statute is to give the statutory words their plain and ordinary meaning. Silva v. Southwest Fla. Blood Bank, Inc., 601 So.2d 1184 (Fla.1992).

The underlying purpose of the offer of judgment statute includes the early termination of litigation by encouraging realistic assessments of the claims made. See Tucker v. Shelby Mut. Ins. Co. of Shelby, Ohio, 343 So.2d 1357, 1359 (Fla. 1st DCA 1977). We see no reason why this policy should not apply to a PIP case just as it applies in any other civil action for damages.

The PIP statute streamlines an insured's receipt of benefits for out-of-pocket losses by removing from consideration the issue of fault. See Lasky v. State Farm Ins. Co., 296 So.2d 9 (Fla.1974)

. However, the PIP statute does not deprive the PIP carrier of its defenses. Indeed, a PIP carrier may dispute a claim based on a coverage defense or on grounds that the medical treatment was not reasonable, necessary or related to the automobile accident. See § 627.736, Fla. Stat. (1997). The fact that an insurance carrier has defenses against a claim for PIP benefits obviously shows that PIP litigation is not a one-sided affair. Thus, the offer of judgment statute's policy of encouraging settlements clearly applies in disputed PIP cases the same as in other civil action for damages. Indeed, we find that the early resolution of PIP claims, by way of offers of judgment, is entirely consistent with the intent of the no-fault legislation of relieving our overburdened court system.

The trial court found and Cahuasqui argues that the offer of judgment statute conflicts with the insurance attorney's fee statute, section 627.428(1), Florida Statutes, which permits a court to award attorney's fees to the prevailing insured exclusively.8 In concluding that section 627.428 precludes fee awards under section 768.79, the trial court relied upon the rule of statutory construction which provides that specific statutes control over statutes dealing generally with the same subject matter. See generally Gay v. Singletary, 700 So.2d 1220, 1221 (Fla.1997)

(stating that "when a law expressly describes the particular situation in which something should apply, an inference must be drawn that what is not included by specific reference was intended to be omitted or excluded."). This rule that the inclusion of one means the exclusion of another, however, does not mean that the application of one precludes the additional application of another. See, e.g., State ex rel. Jones v. Wiseheart, 245 So.2d 849, 854 (Fla.1971)(constitutional provision that chief justice of Supreme Court shall exercise authority to temporarily assign justices and judges does not, expressly or impliedly, prevent legislature from authorizing a presiding circuit judge to assign circuit judges for temporary duty). Similarly in Gay, the defendant argued that the Parole Commission lacked the authority to deny him credit for time spent on community control because section 947.21(2), Florida Statutes only provides the Commission with such authority with regard to parole. 700 So.2d at 1221. The court rejected this argument in view of the legislature's subsequent creation of a "Control Release Program" which gave the Commission authority over inmates on control release.9 The legislature did not state that section 627.428 was the only fee authorizing statute which applies in PIP cases, it merely provided that section 627.428 applies in any dispute between an insured and insurer under the Florida Motor Vehicle No-Fault Law.10 § 627.736(8), Fla. Stat.

The lower court also relied upon section 768.71, Florida Statues in determining that the offer of judgment statute does not apply in PIP cases. Specifically, section 768.71 provides:

[i]f a provision of this part is in conflict with any other provision of the Florida Statutes, such other provision shall apply.

We find, however, that section 768.71(3), by its own terms, only applies where there is a "conflict" between statutes. The mere fact that the legislature provided that section 627.428 applied in PIP cases does not, by itself, mean that it conflicts with the offer of judgment statute.

Indeed, the Supreme Court of Florida in Scottsdale Insurance Company v. DeSalvo, 748 So.2d 941, 944 (Fla.1999), albeit not a PIP case, held that section 627.428 does...

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