ALLSTATE INSURANCE COMPANY, APPELLANT/CROSS-APPELLEE,
v.
MYRDA MANASSE, APPELLEE/CROSS-APPELLANT

Fla. 4th DCA | 1998-08-12
No. 94-2318
KLEIN, J., and GENDEN, MICHAEL A., Associate Judge, concur.
715 So. 2d 1079 Florida District Court of Appeal, Fourth District (1998) Positive Treatment
Cited by 12 cases

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Synopsis

Allstate Insurance appealed the trial court's denial of attorney's fees following rejection of an offer of judgment in an uninsured motorist claim. The court reversed, holding that the trial court erred in finding the offer was not made in good faith, as the offeree failed to prove the absence of good faith and the offeror had provided reasonable justification for the offer amount.


Holding

The court held that Allstate was entitled to attorney's fees and costs because: (1) the mathematical prerequisites of section 768.79 were satisfied; (2) the burden to prove absence of good faith rests on the offeree, not the offeror; (3) Manasse failed to show the offer lacked reasonable foundation or realistic basis; and (4) good faith requires only that the offeror have some reasonable foundation for the offer.


Headnotes

[1] A party is entitled to attorney's fees and costs under section 768.79, Florida Statutes, when an offer of judgment is made and the party recovers a judgment at least 25 p…

[2] Entitlement to attorney's fees under section 768.79, Florida Statutes, is determined by a mathematical calculation and does not depend on the reasonableness of the offer…

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Key Quotes

“the right to an award turns only on the difference between the amount of a rejected offer and the amount of a later judgment. It does not depend on whether the offer or the rejection was reasonable”

Establishes that reasonableness of the offer or rejection is irrelevant to entitlement; only the mathematical calculation and good faith matter.

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Facts & Procedural History

Allstate offered $4,001 in settlement on March 11, 1994, in an uninsured motorist case. Myrda Manasse rejected the offer. A jury later awarded Manasse…

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Opinion of the Court
TAYLOR, Judge.

TAYLOR, Judge.

Upon mandate of the Supreme Court of Florida issued April 2, 1998, which quashes this court’s opinion in Allstate Ins. Co. v. Manasse, 681 So. 2d 779 (Fla. 4th DCA 1996), we adopt as the decision and opinion of this court the opinion of the Supreme Court of Florida, Allstate Ins. Co. v. Manasse, 707 So. 2d 1110 (Fla.1998), and reinstate the judgment of the trial court. That opinion further requires us to consider the issue of attorney’s fees, which we did not reach on the first appeal because of our reversal for a new trial. We now address this issue.1

Appellant/Cross-Appellee, Allstate Insurance Company (Allstate), argues that the trial court erred in determining that Allstate’s offer of judgment was not made in good faith and denying its motion for attorney’s fees and costs. We agree and reverse the trial court’s order denying attorney’s fees and costs to Allstate.

This case arose from an uninsured motorist claim.

On March 11, 1994, pursuant to section 768.79, Florida Statutes (1993), Allstate made an Offer of Judgment to Appel-lee/Cross-Appellant Myrda Manasse (Ma-nasse) in the amount of $4,001.00. Manasse rejected the offer.

On April 27, 1994, a jury awarded Manasse $12,000 for future medical expenses and past pain and suffering. After application of a setoff for the tortfeasor’s policy limits of $10,000, the amount of the verdict and subsequent judgment for Ma-nasse was reduced to $2,000. Allstate moved for determination of entitlement to attorneys’ fees and costs pursuant to its Offer of Judgment. At the hearing on the motion for attorney’s fees and costs, the trial court agreed with Allstate that it met the mathematical calculations for statutory entitlement to attorneys’ fees, but directed Allstate to first explain why its offer made on March 11,1994 should be considered a good faith offer. Allstate objected to being required to meet the initial burden of demonstrating good faith but, nevertheless, went forward and pointed out various factors establishing a reasonable basis for its offer. Among these were the timing of the offer (made after all discovery was completed), an IME finding of no permanent injury, a fully paid $10,000 tortfeasor setoff and the possibility that a jury issue would surface concerning a subsequent accident in which plaintiff was involved. Manasse countered with an enumeration of factors tending to demonstrate the reasonableness of Ma-nasse’s rejection of the offer i.e., an 18-year old female plaintiff with no prior accident, an impairment rating by her treating physician, an MRI determination of a disc herniation, and $1100 in' property damage.

In sum, Manasse argued that an offer for a total recovery of $14,000 under these circumstances, which were known at the time the offer was made, was not a good faith offer. The trial judge decided that, based upon his recollection of the trial and the state of the ease on the date when the offer was made, the offer was not a good faith offer and disallowed the award of attorney’s fees and costs.

In Schmidt v. Fortner, 629 So. 2d 1036 (Fla. 4th DCA 1993), we held that under section 768.79, a party has the:

right to attorney’s fees when the two preceding prerequisites have been fulfilled: i.e., (1) when a party has served a demand or offer for judgment, and (2) that party has recovered a judgment at least 25 percent more or less than the demand or offer. These are the only elements of the statutory entitlement. No other factor is relevant in determining the question of entitlement. The court is faced with a simple, arithmetic, calculation. How that entitlement gets translated into tangible attorney’s fees is covered by the process of an “award.”... [T]he right to an award turns only on the difference between the amount of a rejected offer and the amount of a later judgment. It does not depend on whether the offer or the rejection was reasonable ... [Subsection 7(a) ] does indeed allow the court in its. discretion to disallow an award of attorney’s fees, but only if it determines that a qualifying offer “ was not made in good faith."

Id. at 1040-41.

We restated our holding in Schmidt in deciding Dvorak v. TGI Friday’s, Inc., 639 So. 2d 58 (Fla. 4th DCA 1994), approved by, 663 So. 2d 606 (Fla.1995). There, we stressed that-“section 768.79 does not give the trial court discretion to deny attorney’s fees, once the • prerequisites of the statute have been fulfilled, except if the court determines under section 768.79(7)(a) that ‘an offer was not made in good faith.’ ” Dvorak, 639 So. 2d at 59. In approving Dvorak, the supreme court also noted that “the district court correctly held that section 768.79 provides for the award of attorney’s fees regardless of the reasonableness of an offeree’s rejection of an offer of judgment.” Dvorak, 663 So. 2d at 611.

Essentially, Schmidt held that the “good faith” requirement merely “insists that the offeror have some reasonable foundation on which to base an offer.” Schmidt, 629 So. 2d at 1039. Once entitlement to fees is established, it is lost only if the offeree succeeds in persuading the trial court that the offeror acted without good faith. . Thus, Schmidt interpreted the disallowance provision of subsection (7)(a) to mean that the burden is upon the offeree to prove that the offeror acted without good faith, explaining that:

Subsection (7)(a) begins with the words: “If a party is entitled to costs and fees pursuant to the provisions of this section* * *.” The meaning of this introductory adverbial clause is clearly that a disallowance can be effected only upon someone who is already otherwise entitled to fees. By placing this disallowance provision in a separate subdivision from the award provision, we deduce that the legislature intend ed to place the burden on the offeree to prove the absence of good faith.

Id. at 1041 n. 6.

In the present case, Allstate argues that the trial court improperly placed the burden on Allstate to prove its good faith, instead of requiring Manasse to prove absence of good faith. Although it is true that the trial judge asked Allstate to first explain at the hearing why its offer was in good faith, it is clear from the transcript of the hearing that the court was not putting the burden on Allstate. This was not an evidentiary hearing, but rather a hearing at which the parties made their arguments based on the evidence at trial. The court was simply asking .Allstate to make its argument first. Allstate did, in its argument, come forward with a reasonable explanation for its offer. On the other hand, Manasse did not establish that the offer was not in good faith. Rather, Manasse focused upon factors showing the reasonableness of her rejection of the offer of judgment. Such criteria, under section 768.79, bear more appropriately upon a consideration of the amount of fees awarded, rather than entitlement to fees. Schmidt, 629 So. 2d at 1041-1042.

Moreover, Manasse was unable to show that the offer bore no reasonable relationship to the amount of damages or a realistic assessment of liability, or that Allstate-lacked intent to settle the claim. See Eagleman v. Eagleman, 673 So. 2d 946 (Fla. 4th DCA 1996).

Because we conclude that there was an insufficient basis for finding that the offer of judgment was not made in good faith, we reverse the order denying Allstate an award of attorney’s fees and costs under section 768.79 and remand for a hearing to determine the amount of fees and costs to which Allstate is entitled.

Reversed and remanded.

KLEIN, J., and GENDEN, MICHAEL A., Associate Judge, concur. . Judge Taylor did not sit on the original panel for this appeal. However, she has had the benefit of the entire record on appeal, including transcripts of the proceedings below, the briefs of the parties, and oral argument tapes, and she has been otherwise fully advised of all matters pertinent to this appeal.'


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  • State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067 (Fla. 2006)
    …3d DCA 1998), liability insurance, Rabatie v. U.S. Sec. Ins. Co., 581 So. 2d 1327 (Fla. 3d DCA 1989), and uninsured motorist benefits. See Weesner v. United Servs. Auto. Ass’n, 711 So. 2d 1192, 1194 (Fla. 5th DCA 1998); Allstate Ins. Co. v. Manasse, 715 So. 2d 1079, 1082 (Fla. 4th DCA 1998); Allstate Ins. Co. v. Silow, 714 So. 2d 647, 651 (Fla. 4th DCA 1998); State Farm Mut. Auto. Ins. Co. v. Marko, 695 So. 2d 874, 876 (Fla. 2d DCA 1997). One court has specifically rejected the argument that in an uninsured mo…
  • Dep't of Hwy. Safety & Motor Vehicles v. Weinstein, 747 So. 2d 1019 (Fla. 3d DCA 1999)
    …case was worth no more than a nuisance amount to settle. This factual conclusion — that there was a “reasonable foundation,” Eagleman v. Eagleman, 673 So. 2d 946, 947 (Fla. 4th DCA 1996), or a “reasonable explanation,” Allstate Ins. Co. v. Manasse, 715 So. 2d 1079, 1082 (Fla. 4th DCA 1998), for the offer— equates to the legal conclusion that it was made in good faith under the statute and thus that the appellant is entitled to fees. [*1021] See Deltona House Rentals, Inc. v. Cloer, 734 So. 2d 586 (Fla. 5th DC…
  • U.S. Sec. Ins. Co. v. Liliana Cahuasqui, 760 So. 2d 1101 (Fla. 3d DCA 2000)
    …8) (property insurance); Hartford Cas. Ins. Co. v. Silverman, 689 So. 2d 346 (Fla. 3d DCA 1997) (property insurance); Rabatie v. U.S. Security Ins. Co., 581 So. 2d 1327 (Fla. 3d DCA 1989) (liability insurance); see also Allstate Ins. Co. v. Manasse, 715 So. 2d 1079 (Fla. 4th DCA 1998) (UM insurance); Allstate Ins. Co. v. Silow, 714 So. 2d 647 (Fla. 4th DCA 1998) (UM Insurance); State Farm Mut. Auto. Ins. Co. v. Marko, 695 So. 2d 874 (Fla. 2d DCA 1997) (UM insurance); Buchanan v. Allstate Ins. Co., 629 So. 2d 9…

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