SUSAN WESTOVER, APPELLANT,
v.
ALLSTATE INSURANCE COMPANY, AN ILLINOIS CORPORATION, APPELLEE
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Susan Westover appealed a judgment in favor of Allstate Insurance Company denying her uninsured motorist benefits claim and an award of attorney's fees to Allstate. The court affirmed the underlying judgment but reversed the attorney's fees award because entry of judgment in favor of the plaintiff is a prerequisite to awarding sanctions under Florida law.
The court affirmed the award of costs to Allstate as the prevailing party but struck the attorney's fees award because entry of judgment in favor of the plaintiff is a prerequisite to the defendant seeking sanctions against the plaintiff for refusing a settlement offer under sections 768.79 and 45.061 and Florida Rule of Civil Procedure 1.442.
[1] A defendant may not seek attorney's fees and costs as sanctions for a plaintiff's refusal of a settlement offer made pursuant to sections 768.79 and 45.061, Florida Statu…
[2] The prevailing party in an action is entitled to an award of costs pursuant to section 57.041, Florida Statutes.
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Join FLexlaw to unlock all legal intelligence“Entry of judgment in favor of the plaintiff is a prerequisite to the defendant seeking sanctions against the plaintiff for refusing an offer made pursuant to sections 768.79 and 45.061 and rule 1.442”
The court's holding establishing the legal requirement for awarding attorney's fees as sanctions under Florida law
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Join FLexlaw to unlock all legal intelligenceWestover brought an action against Allstate for uninsured motorist benefits. Allstate made a settlement offer pursuant to section 45.061, Florida Stat…
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HALL, Judge.
The appellant, Susan Westover, challenges the final judgment entered in favor of the appellee, Allstate Insurance Company, in her action for uninsured motorist benefits. We affirm that judgment. She also challenges the separate final judgment awarding Allstate attorney’s fees and costs. We affirm the award of costs but strike that part of the judgment awarding Allstate attorney’s fees.
Allstate filed a motion to tax attorney’s fees and costs pursuant to sections 45.061,1 57.041, and 768.79, Florida Statutes (1987), and Florida Rule of Civil Procedure 1.442. The trial court granted the motion without reference to the rule or any of the statutes. We affirm the award of costs to Allstate as it is the prevailing party under section 57.-041. We strike the award of attorney’s fees because judgment was not entered in favor of Westover. Entry of judgment in favor of the plaintiff is a prerequisite to the defendant seeking sanctions against the plaintiff for refusing an offer made pursuant to sections 768.79 and 45.061 and rule 1.442 Kline v. Publix Supermarkets, Inc., 568 So. 2d 929 (Fla. 2d DCA 1990) (section 768.79 and rule 1.442); Coe v. B & D Transportation Services, Inc., 561 So. 2d 469 (Fla. 2d DCA 1990) (sections 768.79 and 45.061).
We certify that our holding in this case brings us in direct conflict with the Third District insofar as section 45.061 is concerned. In Memorial Sales, Inc. v. Pike, 579 So. 2d 778 (Fla. 3d DCA May 7, 1991), the Third District held that section 45.061 does not require the entry of a judgment in favor of the plaintiff before the defendant may seek sanctions for the refusal of the offer. Reversed and remanded.
SCHOONOVER, C.J., and THREADGILL, J., concur. . Westover contends that Allstate’s offer of settlement pursuant to section 45.061, Florida Statutes (1987), was void because the instant cause of action occurred on February 21, 1987, and section 45.061 did not become effective until July 2, 1987. It is not the date the cause of action occurred, but the date the offer is made that triggers the operation of section 45.061. Hemmerle v. Bramalea, 547 So. 2d 203 (Fla. 4th DCA 1989), review denied, 558 So. 2d 18 (Fla.), cert. denied, — U.S. —, 110 S.Ct. 2620, 110 L.Ed.2d 641 (1990); A.G. Edwards & Sons, Inc. v. Davis, 559 So. 2d 235 (Fla.1990).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Leapai v. Milton, 595 So. 2d 12 (Fla. 1992)…While amici curiae have also addressed the question of whether section 45.061, Florida Statutes, permits the recovery of attorney fees by the defendant when no judgment for the plaintiff has been entered, compare Westover v. Allstate Insurance Co., 581 So. 2d 988 (Fla. 2d DCA 1991) (entry of judgment in favor of plaintiff is prerequisite to defendant’s seeking sanctions against plaintiff for refusing settlement offer), with Memorial Sales, Inc. v. Pike, 579 So. 2d 778 (Fla. 3d DCA 1991) (entry of judgment in…
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Lennar Corp. v. Muskat, 595 So. 2d 968 (Fla. 3d DCA 1992)…), and that it applies when judgment is entered for the defendant. On the latter issue, we again certify conflict with Timmons v. Combs, 579 So. 2d 840 (Fla. 1st DCA 1991), review granted, 587 So. 2d 470 (Fla.1991) and Westover v. Allstate Ins. Co., 581 So. 2d 988 (Fla. 2d DCA 1991). See Leapai v. Milton, 595 So. 2d at 14 (issue noted but not resolved). On the merits, we conclude that the presumption of unreasonable rejection created under these circumstances was not rebutted as a matter of law, see Gross v.…
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Brodose v. The Sch. Bd. OF Pinellas Cnty., 622 So. 2d 513 (Fla. 2d DCA 1993)…of that statute (§ 768.79, Fla.Stat. (1986 Supp.)) did not provide for an award of attorney’s fees in such circumstances and, in fact, was being interpreted by this court as a prohibition to the entry of such an award. Westover v. Allstate Ins. Co., 581 So. 2d 988 (Fla. 2d DCA 1991); Coe v. B & D Transp. Servs., Inc., 561 So. 2d 469 (Fla. 2d DCA 1990); Gunn v. DePaoli, 562 So. 2d 427 (Fla. 2d DCA 1990). Similarly, although section 45.061 has been repealed as to causes of action accruing after October 1, 1990…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kline v. Publix Supermarkets, Inc., 568 So. 2d 929 (Fla. 2d DCA 1990)
- Holt v. State, 547 So. 2d 203 (Fla. 3d DCA 1989)
- Mem'l Sales, Inc. v. Pike, 579 So. 2d 778 (Fla. 3d DCA 1991)
- A.G. Edwards & Sons, Inc. v. Davis, 559 So. 2d 235 (Fla. 2d DCA 1990)
- Wallen v. Jerome Isaac, M.D., 561 So. 2d 469 (Fla. 2d DCA 1990)
- COE v. B & D Transp. Servs., Inc., 561 So. 2d 469 (Fla. 2d DCA 1990)