ROBERT COLLINS, D.O., AND SHARYN COLLINS, HIS WIFE, APPELLANTS,
v.
GEORGE Q. HOLLAND, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF GEORGE R. HOLLAND, DECEASED, FLORIDA INSURANCE GUARANTY ASSOCIATION, AS ANCILLARY RECEIVER FOR CONSOLIDATED MUTUAL INSURANCE COMPANY, APPELLEES
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Dr. Collins sued George Holland for dog bite injuries, but the case was dismissed due to failure to substitute Holland's personal representative after his death. After refiling and accepting an Offer of Judgment, Collins sought reimbursement of costs from the initial action, which the trial court denied. The appellate court reversed, holding that accrued costs from the initial lawsuit must be reimbursed under Florida Rule of Civil Procedure 1.442.
Costs from the initial lawsuit constitute 'accrued costs' within the meaning of Florida Rule of Civil Procedure 1.442 and must be reimbursed to the prevailing party who accepts an Offer of Judgment. To penalize a successful litigant for accepting an offer of judgment would controvert the purpose of the rule, which favors settlements.
[1] Costs incurred in an initial lawsuit are considered "accrued costs" within the meaning of Florida Rule of Civil Procedure 1.442 when a case is refiled after dismissal.
[2] The purpose of Florida Rule of Civil Procedure 1.442, which governs offers of judgment, is to favor settlements and penalizing a successful litigant for accepting an offe…
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Join FLexlaw to unlock all legal intelligence“At any time more than ten days before the trial begins a party defending against a claim may serve an offer on the adverse party to allow judgment to be taken against him for the money or property or to the effect specified in his offer with costs then accrued.”
The governing rule establishing what constitutes recoverable costs in an Offer of Judgment
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Join FLexlaw to unlock all legal intelligenceDr. Collins was bitten by Holland's dog while shopping at Holland's furniture store. Collins and his wife sued Holland for damages, but the case was d…
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BASKIN, Judge.
Dr. Collins and his wife sued George Holland to recover for injuries sustained when Holland’s dog bit Dr. Collins while he shopped in Holland’s furniture store. Because appellants failed to substitute the personal representative following Holland’s death, the case was dismissed. Dr. Collins then refiled his claim naming the personal representative of Holland’s estate; his wife pursued her derivative claim. In response to appellees’ motion for stay, predicated upon appellants’ failure to pay the costs’ judgment, appellants paid $780.95, the costs incurred in the initial action.
Appellees then filed an Offer of Judgment which appellants accepted. Dr. and Mrs. Collins asked the court to tax costs in their favor, including reimbursement of the costs they had been required to pay in connection with the first proceeding. The trial court granted the motion only insofar as it pertained to the $82 in costs incurred in the second action.
We reverse the order denying appellants’ request for reimbursement upon our holding that the costs of the initial lawsuit constituted “accrued costs” within the meaning of Florida Rule of Civil Procedure 1.442:
At any time more than ten days before the trial begins a party defending against a claim may serve an offer on the adverse party to allow judgment to be taken against him for the money or property or to the effect specified in his offer with costs then accrued. An offer of judgment shall not be filed unless accepted or until final judgment is rendered. If the adverse party serves written notice that the offer is accepted within ten days after service of it, either party may then file the offer and notice of acceptance with proof of service and thereupon the court shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence of it is not admissible except in a proceeding to determine costs. 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. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by further proceedings, the party adjudged liable may make an offer before trial if it is served within a reasonable time, not less than ten days, before beginning of the hearing or trial to determine the amount or extent of liability. This rule shall not apply to actions or matters related to dissolution of marriage, alimony, nonsupport or child custody. (Emphasis added). Costs pertaining to discovery materials are generally recoverable by the prevailing party. Gordon International Advertising, Inc. v. Charlotte County Land & Title Co., 170 So. 2d 59 (Fla. 3d DCA 1965); § 57.041, Fla.Stat. (1979). To penalize a successful litigant for accepting an offer of judgment would controvert the purpose of Florida Rule of Civil Procedure 1.442, favoring settlements. White v. Cowles Florida Broadcasting, Inc., 361 So. 2d 821 (Fla. 1st DCA 1979).
Reversed and remanded for further proceedings.
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Citator
Cited By
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LOY v. Leone, 546 So. 2d 1187 (Fla. 5th DCA 1989)…r made prior to trial by shifting payment and recovery of costs incurred after the offer is made. Cheek. It is, in effect, a punitive measure and therefore should be construed in favor of the party to be sanctioned. See generally Collins v. Holland, 409 So. 2d 1097,1099 (Fla. 3d DCA 1982). But for rule 1.442, Loy would not be liable for any of the Leones’ costs, and he would be entitled to recover his own in full. The Leones’ offer was timely when originally made. However, when they participated in the commen…
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McARTHUR Dairy, Inc. v. Guillen, 470 So. 2d 747 (Fla. 3d DCA 1985)…6 F. 2d at 857, applies with equal force to the question in the present case of what costs the plaintiff should be permitted to get back once he has paid them as the price of taking a voluntary dismissal. Lastly, we believe that Collins v. Holland, 409 So. 2d 1097 (Fla. 3d DCA 1982), implicitly calls for the result we reach. In Collins, this court examined the related but distinct issue of whether a plaintiff who paid costs to the defendant following an involuntary dismissal as a prerequisite to a second acti…
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Vogel v. Allen, 443 So. 2d 368 (Fla. 5th DCA 1983)…1982). The city map of Bunnell may have been relevant demonstrative evidence to prove the invalidity of the recorded plat, and therefore we conclude the cost of the map may be taxed. Loftin v. Anderson, 66 So. 2d 470 (Fla.1953); Collins v. Holland, 409 So. 2d 1097 (Fla. 3d DCA 1982); 12 Fla. Jur.2d Costs § 25 (1979). For the reasons stated, we reverse the attorney fees awarded and we modify the cost judgment from $95.69 to $36.35. REVERSED in part; AFFIRMED in part as modified. COBB and FRANK D. UPCHURCH,…
Authorities Cited
- Gordon Int'l Advertising, Inc. v. Charlotte Cnty. Land & Title Co., 170 So. 2d 59 (Fla. 3d DCA 1964)
- White v. Cowles Fla. Broad., Inc., 361 So. 2d 821 (Fla. 1st DCA 1978)