LAUREL L. GAMMIE, APPELLANT,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, APPELLEE
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A defendant is not entitled to attorney's fees under the offer of judgment statute after a plaintiff's voluntary dismissal without prejudice, even if the claim is time-barred.
State Farm voluntarily dismissed its subrogation case against Gammie without prejudice after Gammie made an offer of judgment. Gammie sought attorney'…
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FLETCHER, J.
Laurel L. Gammie, the defendant in a subrogation case filed by State Farm Mutual Automobile Insurance Company [State Farm], appeals the denial of her motion for attorney’s fees pursuant to section 768.79, Florida Statutes (1991). Gammie filed her motion for fees after State Farm voluntarily dismissed without prejudice its complaint against her without accepting the offer of judgment she submitted in the case. Although the voluntary dismissal was taken by State Farm without prejudice, Gammie contends that she was nevertheless entitled to an award of statutory attorney’s fees because the dismissal was taken after the statute of limitations period had run on State Farm’s claim against her. Under these circumstances, Gammie asserts that the dismissal, even though technically without prejudice, because of the potential time-bar defense to a second action, effectively operated as a judgment of no liability on the claim as required for recovery of fees by a defendant whose offer of judgment is rejected. See MX Invs., Inc. v. Crawford, 700 So. 2d 640 (Fla.1997).
We cannot agree with Gammie’s contentions on appeal under our reading of section 768.79, Florida Statutes and MX Investments. In order for a defendant to recover attorney’s fees under the offer of judgment statute following a plaintiffs voluntary dismissal of its claim, the dismissal must be with prejudice.1 See MX, 700 So. 2d at 642. Although we recognize that State Farm’s claim against Gammie is indeed subject to being barred in a second action due to the running of the statute of limitations period, the voluntary dismissal here was not the equivalent of a no liability adjudication on the merits as required by section 768.79. We therefore affirm the trial court’s denial of Gammie’s motion for attorney’s fees.
Affirmed.
. To be clear, two voluntary dismissals result in a dismissal with prejudice, thus an adjudication on the merits. See Fla.R.Civ.P. 1.420(a).
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Tucker v. Ohren, 739 So. 2d 684 (Fla. 4th DCA 1999)…a)(1). The trial judge considered that because the claim was barred by the statute of limitations, the dismissal was tantamount to a dismissal with prejudice. However, this argument was rejected in Gammie v. State Farm Mut. Automobile Insurance Co., 720 So. 2d 1163 (Fla. 3d DCA 1998), reasoning that MX Investments limited attorney’s fees on an offer of judgment to dismissals with prejudice even though the statute of limitations would preclude re-institution of the suit, because a voluntary dismissal is not the…
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Sanchez v. State Farm Fla. Ins. Co., 997 So. 2d 1209 (Fla. 3d DCA 2008)
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Commonwealth Prop. Assocs., Inc. v. Suntrust Bank, 835 So. 2d 1175 (Fla. 2d DCA 2002)…an award of attorney’s fees in accord with section 768.79, Florida Statutes, the offer of judgment statute. See also Aero Toy Store, Inc. v. Sherwin-Williams Co., 725 So. 2d 1267, 1268 (Fla. 4th DCA 1999); Gammie v. State Farm, Mut. Auto. Ins. Co., 720 So. 2d 1163, 1163-64 (Fla. 3d DCA 1998). Because Commonwealth and S.W. Enterprise dismissed their claims without prejudice, and it was their first voluntary dismissal of the claims, SunTrust was not entitled to recover attorney’s fees pursuant to the offers of…
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- State v. Almeida, 700 So. 2d 640 (Fla. 1997)