INFINITY AUTO INSURANCE COMPANY

v.

MIAMI OPEN MRI, LLC, A/A/O ROLANDO AMADOR

Third District Court of Appeal State of Florida

Opinion filed June⁴, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D24-0945 Lower Tribunal No. 17-10295-SP-26 ________________

Infinity Auto Insurance Company, Appellant,

vs.

Miami Open MRI, LLC, a/a/o Rolando Amador, Appellee.

An Appeal from the County Court for Miami-Dade County, Patricia Marino Pedraza, Judge.

Gladys Perez Villanueva, for appellant.

Douglas H. Stein, P.A., and Douglas H. Stein; Law Offices of Kenneth

B. Schurr, P.A., and Kenneth B. Schurr, for appellee.

Before EMAS, FERNANDEZ and GORDO, JJ.

EMAS, J.

The relevant facts are not in dispute, and the history of this case is set forth in this court’s earlier decision in Infinity Auto Ins. Co. v. Miami Open MRI (“Infinity Auto I”), 361 So. 3d 954, 955-56 (Fla. 3d DCA 2023): The insured, Rolando Amador, allegedly suffered personal injuries when he was involved in an automobile accident on April¹⁵, 2015. At the time of the accident, Amador had an automobile insurance policy with Infinity Auto providing PIP coverage, and Amador notified Infinity Auto about the accident. Thereafter,

1 “In determining whether a proposal for settlement comports with rule 1.442 and section 768.79, we employ a de novo standard of review.” Peltz v. Tr. Hosp. Int’l, LLC, 242 So. 3d 518, 520 n.3 (Fla. 3d DCA 2018) (citation omitted).

Miami Open, as Amador's assignee, sued Infinity Auto for breach of contract. Infinity Auto answered, raising the sole affirmative defense that Miami Open was not entitled to benefits because Amador's failure to appear for two properly noticed examinations under oath constituted a failure to comply with a condition precedent to receiving benefits under section 627.736(6)(g), Florida Statutes (2015),[] and the terms of the policy.

The parties filed cross-motions for summary judgment, and the trial court “concluded that Infinity Auto failed to meet its burden on summary judgment to show that the affirmative defense was applicable.” Id. at 956. This court reversed the summary judgment in favor of Miami Open, and remanded with instructions to grant summary judgment in favor of Infinity Auto. Id. at 957. In addition, this court conditionally granted Infinity Auto’s motion for appellate attorney’s fees, subject to a determination pursuant to section 768.79 (offers of judgment), Florida Statutes, and Florida Rule of Civil Procedure 1.442 (proposals for settlement).²

2 The terms “offer of judgment” and “proposal for settlement” are generally used interchangeably. The applicable statute (section 768.79, Florida Statutes) refers to offers of judgment; Florida Rule of Civil Procedure 1.442 refers to proposals for settlement. To the extent they are substantive, offers of judgment/proposals for settlement are controlled by statute. To the extent they are procedural, they are governed by court rule under the exclusive

PROPOSAL FOR SETTLEMENT

1. This Proposal for Settlement is being made pursuant to and in accordance with Florida Rule of Civil Procedure 1.442 and Florida Statute 768.79.

2. The party making the proposal is the Defendant, INFINITY

AUTO INSURANCE COMPANY and the party to whom the proposal is being made is the Plaintiff, MIAMI OPEN MRI, as assignee of ROLANDO AMADOR.

3. Attorney’s fees are part of the legal claim at issue in this case. This Proposal for Settlement includes attorney’s fees and costs.

rulemaking authority of the Florida Supreme Court. See Kuhajda v. Borden Dairy Co. of Alabama, LLC, 202 So. 3d 391, 395 (Fla. 2016) (“The only purpose of rule 1.442 is to provide a procedural framework to implement the substantive requirements of section 768.79 regarding settlement proposals.”); Cent. Fla. Med. & Chiropractic Ctr. v. Progressive Am. Ins. Co., 328 So. 3d 1111, 1113 (Fla. 5th DCA 2021) (“While the substantive right to recover fees and costs was legislatively created, the method and means of implementing this right were established in Rule 1.442, which outlines the form and content of a valid proposal for settlement.”) (citing TGI Friday's Inc. v. Dvorak, 663 So. 2d 606 (Fla. 1995)).

5 4. The claims the proposal is attempting to resolve are any and all of the Plaintiff’s claims for PIP benefits that were or could have been brought in this case by Plaintiff, MIAMI OPEN MRI as assignee of ROLANDO AMADOR inclusive of any and all mileage claims and interest, for the accident involving MIAMI OPEN MRI as assignee of ROLANDO AMADOR, as set forth in the Plaintiff’s complaint, including, but not limited to any claims for PIP benefits, mileage, interest, and attorney’s fees and costs.

5. The total Proposal for Settlement is for ONE HUNDRED

DOLLARS ($100.00), and breaks down as follows:

A) ONE DOLLAR and 00/100 ($1.00) as compensation for any and all claims for PIP benefits, mileage and interest that were or could have been brought in this case by the Plaintiff, inclusive of interest. B) NINETY NINE and 00/100 ($99.00) as payment for attorney’s fees and costs inclusive.

6. A non-monetary term of this Proposal for Settlement is that the Plaintiff agrees to, and files a Voluntary Dismissal with Prejudice of this case upon receipt of the drafts in the above-noted amounts.

7. The terms of this Proposal for Settlement are non-severable and cannot be accepted by the Plaintiff, without acceptance by the Plaintiff of all the terms hereof.

8. This Proposal for Settlement is not to be construed as an

admission of liability on the part of the Defendant. The Defendant accordingly reserves any and all rights and defenses it may have in this case and any other actions or lawsuits now or hereafter pending relating to the claim which forms the basis for this lawsuit, and payment would accordingly be made under such reservation of rights if this Proposal if accepted. Instead this Proposal is being made in an effort to resolve the case and avoid future costs and fees.

6 9. This Proposal for Settlement is being made in an effort to resolve the case and avoid future costs and fees. If there are any questions about any of the above terms, you are encouraged to submit your questions, in writing, an attempt to answer your questions will be made whenever possible. Nothing contained herein shall be deemed to extend or toll the time to accept or decline this Proposal for Settlement.

(Emphasis added).

At the time the proposal for settlement was served on Miami Open, another case was pending against Infinity Auto by a separate provider (Prime Medical & Rehab Services, Inc., as assignee of Rolando Amador) which had provided medical services to the insured for injuries arising from the same accident. On remand from this court’s decision in Infinity Auto I, the trial court entered an order granting summary judgment in favor of Infinity Auto. Thereafter, and pursuant to our order conditionally granting Infinity Auto’s motion for appellate attorney’s fees, Infinity Auto filed the underlying motion for attorney’s fees and costs based on its proposal for settlement. Miami Open filed a response and objection to Infinity Auto’s motion based on a “rejected defective proposal for settlement,” contending the proposal for settlement “lacks the required particularity and specificity; fails to satisfy the requirements of Rule 1.442 and Florida Statute 768.79; contains conflicting

3 Again, Paragraph⁸ provides: “This Proposal for Settlement is not to be construed as an admission of liability on the part of the Defendant. The Defendant accordingly reserves any and all rights and defenses it may have in this case and any other actions or lawsuits now or hereafter pending relating to the claim which forms the basis for this lawsuit, and payment would accordingly be made under such reservation of rights if this Proposal if accepted. Instead this Proposal is being made in an effort to resolve the case and avoid future costs and fees.”

ANALYSIS AND DISCUSSION

“The proposal for settlement statute, section 768.79, Florida Statutes (2014), creates a substantive right to attorney's fees upon the occurrence of certain specified conditions,” and Florida Rule of Civil Procedure 1.442 provides the procedural framework to implement those statutory requirements. USAA Cas. Ins. Co. v. Health Diagnostics of Fort Lauderdale, LLC, 388 So. 3d 1064, 1068 (Fla. 3d DCA 2024) (internal citations omitted); see also Fla. R. Civ. P 1.442 (2021) (“A proposal shall . . . state that the proposal resolves all damages that would otherwise be awarded in a final judgment in the action in which the proposal is served . . . [and] [] state with particularity any relevant conditions.”). Because the statute is in derogation of the common law requiring each party to pay its own attorney’s fees, any settlement proposal must strictly follow these statutory and procedural requirements to entitle the offeror to attorney’s fees. Allen v. Nunez, 258 So. 3d 1207, 1211 (Fla. 2018). Fees awarded based on a rejected settlement proposal are punitive as they seek to sanction the offeree “for unnecessarily prolonging litigation by refusing to

With this language of Paragraph Four in mind, we turn to the language of Paragraph Eight:

8. This Proposal for Settlement is not to be construed as an

admission of liability on the part of the Defendant. The Defendant accordingly reserves any and all rights and defenses it may have in this case and any other actions or lawsuits now or hereafter pending relating to the claim which forms the basis for this lawsuit, and payment would accordingly be made under such reservation of rights if this Proposal if accepted. Instead this Proposal is being made in an effort to resolve the case and avoid future costs and fees.

(Emphasis added).

Paragraph Eight does not extinguish any claims Miami Open may assert in the future. A common-sense reading of Paragraph Eight merely provides that if Miami Open asserts such a claim in the future, this proposal for settlement will not extinguish any rights or defenses Infinity Auto may have. In other words, Paragraph Eight merely (if unnecessarily) constitutes a reservation of rights—not an extinguishment of future claims. In addition, the

Paragraph Eight is not a release—it reserves Infinity Auto’s rights and defenses in any pending or future related claims while acknowledging the proposal for settlement seeks “to resolve the case,” and requires one to read the entirety of that paragraph in para materia. For instance, use of the word “accordingly” in the second sentence relates back to the initial sentence, providing that the proposal for settlement is not an admission of liability by Infinity Auto. Compare with Kee v. Baptist Hosp. of Miami, Inc., 971 So. 2d 814, 815 (Fla. 3d DCA 2007) (held not ambiguous: counsel “shall agree that all known liens or other claims of third parties, including but not limited to, health care providers of [Kee], will be satisfied and extinguished by [Kee] and [Kee’s] counsel”); Tower Hill Signature Ins. Co. v. Kushch, 335 So. 3d 743, 747 (Fla. 4th DCA 2022) (held not ambiguous: “This Proposal for Settlement is to resolve any and all damages that would otherwise be awarded in a final judgment in this action, including any and all claims and causes of action giving rise to the above-styled lawsuit brought by Plaintiff, ALEX KUSHCH, against Defendant, TOWER HILL SIGNATURE INSURANCE COMPANY,

In addition, and as pointed out by Infinity Auto, there were no pending claims between these parties (Infinity Auto and Miami Open) at the time Infinity Auto served the proposal for settlement, further supporting the conclusion that no ambiguity was created by Paragraph Eight. Compare with Andersen Firm, P.C. v. Brown, 330 So. 3d 546, 548 (Fla. 4th DCA 2021) (finding the proposal ambiguous where it failed to name the parties to be released and there were outstanding claims: “When a plaintiff has multiple outstanding claims, ‘settlement proposals must clarify which of an offeree’s outstanding claims against the offeror will be extinguished by any proposed release.’”) (quoting Nichols, 932 So. 2d at 1080). Infinity Auto’s proposal for settlement specifically named Infinity Auto and Miami Open, sought to resolve the claims in the complaint, and consistently referenced “the case.” For example, the Proposal for Settlement provided: • Paragraph Two: “The party making the proposal is the Defendant, INFINITY AUTO INSURANCE COMPANY and the party to whom the proposal is being made is the plaintiff, MIAMI OPEN MRI, as assignee of ROLANDO AMADOR.”