UNITED SERVICES AUTOMOBILE ASSOCIATION, HERMAN GRAULICH AND LAURIE GRAULICH, APPELLANTS,
v.
BARRY K. NOELL, APPELLEE
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The court held that the trial court erred in taxing costs against the defendants because the plaintiff's final judgment was less favorable than the defendant's offer of judgment.
The plaintiff was injured in an automobile collision and sued the defendant. The defendant made an offer of judgment, which the plaintiff refused. The…
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PER CURIAM.
Defendants, United Services Automobile Association and its insureds, Herman and Laurie Graulich, appeal an order denying their motion to tax costs.
Barry Noell was injured in an automobile collision which resulted from the negligence of Herman Graulich. Noell filed suit against Graulich, his wife, Laurie, and their liability insurer, U.S.A.A. Thereafter, U.S. A.A. submitted an offer of judgment for $3,001.00 plus legally taxable costs. Noell refused the offer and the cause was tried by a jury which returned the following verdict:
“WE, THE JURY, find in favor of the Plaintiff, BARRY K. NOELL, and against the Defendants, HERMAN GRAULICH and LAURIE GRAULICH, and assess his damages at $7,680 -5.000 $2,680
“SO SAY WE ALL.
/s/ Armando J. Olivera ARMANDO J. OLIVERA, Foreman
“DATED: SEPTEMBER 29, 1978”
A final judgment for $2,680 was entered for Noell. Thereupon, U.S.A.A. filed a motion to tax costs against Noell pursuant to Fla. R.Civ.P. 1.442 on the ground that the offer of judgment was more than the judgment awarded to Noell. Noell also moved to tax costs against the Graulichs and U.S.A.A. The trial judge then heard the respective motions to tax costs and entered an order taxing costs against U.S.A.A. and the Grau-lichs on the ground that the unreduced jury verdict ($7,680) exceeded the $3,001 offer of judgment. U.S.A.A. and the Graulichs appeal therefrom. We reverse.
Fla.R.Civ.P. 1.442 clearly provides “if the judgment finally obtained by the adverse party is not more favorable than the offer, he must pay the costs incurred after the making of the offer.” [Emphasis supplied]. The final judgment obtained by Noell was $2,680. That amount being less than the unconditional offer of judgment of $3,001.00, it was error to tax costs against U.S.A.A. and the Graulichs. Pursuant to Fla.R.Civ.P. 1.442 Noell must pay the costs incurred after the making of the offer. Reversed and remanded.
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Frank v. Engel van Lines, Inc., 429 So. 2d 333 (Fla. 3d DCA 1983)…of the offeror under Fla.R.Civ.P. 1.442 accrues as a matter of right, and is not subject to the discretion of the court. Kendall East Estates, Inc. v. Banks, 386 So. 2d 1245, 1247 (Fla. 3d DCA 1980); United Services Automobile Association v. Noell, 372 So. 2d 504 (Fla. 3d DCA 1979). . In this decisive respect, the “offer” is the semantic reverse of the rule, which requires the plaintiff to pay post-offer costs if the judgment is “not more favorable.” Since this did not in fact occur, it is apparent that, if…