HEALTH USA CORP

v.

U S SECURITY INSURANCE COMPANY

Before TINKLER MENDEZ, SAYFIE, and REBULL, J].

PER CURIAM

Health USA Corporation (“medical provider" or “provider”) filed a eotttractual breach action against U.S. Security Insurance Company (“insurer" or “insurance company”). The trial court denied the provider's motion for a directed verdict and the insurance company’$ motion for section 768.79, Florida Statutes, attorney’s fees. We affirm the order denying the p1‘0VidB1"s motion for a directed verdict and vacate the order denying section 768.79(l) att0t'ney’s fees. We have jurisdiction to review both orders. Fla. R. App. P. 9.030(c)(l)(A) & 9.110(h); BDO Seidman, LLP v. British Car Auctions, Ina, 789 So. 2d I019, 1020 (Fla. 4th DCA 2001). l /2%, [*2] G8—l8—’ l4 l'l :37 FROM— T—422 P0003/000? F-57? Directed Verdict Analysis (Case No. 121;]T;A,_[_j The pfflvidcl‘ argues that the trial court should have granted its motion for a directed verdict on the relatedness issue since no testimony established that the claimant “sustained injuries in that {slip and] fall" or that “the injuries claimed in” the July 2008 accident relate to the prior slip and fall. We review an order denying at motion for a directed verdict do novo. Miami»Dade County v. Eghbai, 54 So. 3d 525, S26 (Fla. 3d DCA 2011). We evaluate the evidence “in the light most favorable to the non-moving party [the insurer], drawing every reasonable inference flowing from the evidence in the non-moving pat'ty’$ [insurer’s} favor.” Id. If “different reasonable inferences may he drawn from the evidence, then the issue is factual and should be submitted to thejury for resolution." Id. Dr. Tamayo‘s testimony justified submitting the relatedness issue to the jury. During cross-examination, he testified that the claimant “had pain in the right elbow, the right shoulder”, and “right wrist", and that “there is no documentation about any impact oi“ tier “right shoulder, right forearm or right wrist on any part of the car” (Trial Tr. l63:9-20, Feb. I4, 2008). Drawing an inference in the insurer-’s favor, a jury could conclude that because no documentation indicated that the claimanfs right shoulder, forearm, or wrist impacted the vehicle during the accident, the pain in her right side did not result fi'om the July 2008 accident. We affirm the order denying‘ the motion for a directed verdict. IIi§=!l,..QT.1tttf..\‘Js. Section 768.79 Artentettn=1ieas.Qmer.tCase No-_ i2.-308 AP) After final judgment, the trial court denied the insurer’s motion for section 768.79 attorney's fees. Relying upon the pt-oposal’s fifth (Sth) paragraph, the court found that the proposal did not stipulate entitlement to fees and considered the settlement offer ambiguous. On appeal, the insurer asserts that the trial court incorrectly found the settlement proposal ambiguous and defective. According to the insurer, the words “if any” refer to the attorney’s fees‘ amount rather than entitlement to fees. We review whether a proposal contains an ambiguity dc novo. Alamo Fin, L.P. v. Mn.-rofl§ 112 So. 3d 626, 628 (Fla. 4th DCA 2013). We strictly construe section 768.79 and Rule 1.442 since these provisions derogatc “the common law rule that each party pay its own attorncy’s fees”. Id. Upon‘finding a proposal ambiguous, such proposal becomes unenforceable. Id. at 628. A proposal shall “state whether” it “includes attorneys’ fees and whether attorneys’ fees are part of the legal claim". Fla. R, Civ. P, l.442(c)(2)(F). Rule 1.442 “merely requires” that the proposal use [*3] 0848-’ '14 11:37 Mazoflfi112 So. 3d at 629. A Here, the proposal acknowledged that the pro‘/i(le1"s legal claim includes attorney’s fees, but the settlement proposal specifically comnlunicated that it does not include attorney’s fees. The proposal also stated the total offer as $1500.00 for benefits exclusive of attorney‘s fees. See R. 611, 1111 3-5. Although indicating an intent to exclude attorney’s fees, the insurer nonetheless included a condition involving attorney/’s fees: if the Plaintiff [provider]; timely accepts the Defendanfs Offer of Judgment, than the issue of the amount of reasonable and necessary attorney fees and taxable costs incurred by the Plaintiff to obtain the result achieved up to the date and time of the service of this Offer of Judgment, if any, shall be determined by the Trial Court. Id. at ~g 5 (emphasis added). Because paragraph five (5) does not use the word entitlement, we conclude that “if any” refers to amount rather than entitlement.‘ We find that the settlement proposal indicated the insurer’s intent to avoid resolving attorneys’ fees. We hold that no anibiguity exists as to entitlement, vacate the order denying section 768.79 attorneys’ fees, and -remand for further proceedings. See Vines v. Mathis, 867 So. 2d 548, 549 (Fla. lst DCA 2004) (absent “finding” that an “offer of judgment was not made in good faith, the trial c0u1t’s entry of a no liabilityjudgment mandated an award of fees and costs incurred after the date the offer was served”). MOTION FOR APPELLATE ATTORNEYS’ FEES We address the insurer’s motion for appellate nttomey’s fees in Case lflo. 12-157 AP separately as we find it problematic. The insurer requested appellate attorney’s fees pursuant to section 768.798), Florida Statutes (1997). Section 768.796) states that “[t]he offer shall be served upon the party to whom it is made, but it shall not ho filed unless it is accepted or unless filing is necessary to enforce the provisions of this section". Clearly, subsection (3) does not entitle a litigant to attorneys’ fees. See Progressive Express Ins. Co. v. Med-Union Med. Center, Ina, rt/a/0 De.S‘0uza, 18 Fla. L Weeklir Supp. ill3a n.l (Fla. llth Cir. Ct. Sept. 22, 2011) (same appellate counsel citing the incorrect subsection), abrogated on other l See Encompass Inc. v. Alford, 444 So. 2d I035, I086-1087 (Fla. lst DCA 1984) (“unless the offer and acceptance afflrrnatlvely indicate that the amount specified in the offer is to include atto1'ney’s fees, the plaintiff, by accepting the offer, is notprecluded from seeking attorneys fees to which he may be entitled by statute”) (emphasis added). [*4] 08-18314 11:38 FROi"l- T—422 POOG5/000? F—5?7 ‘ g1'0uJ"rd.$', Umrecl Auto. Ins. C0. v. John S. Wrga, D.C., P.A., 116 So. 3d 1288, 1289 (Fla. 3d DCA 2013).’ A motion for appellate fees “shall state the grounds on which recovery is sought”. Fla. R. App. P. 9.400(b). In this matter, the insurer referenced section 768.79 but incorrectly cited subsection (3) as the basis for fees. The insure1"s counsel did not consistently request fees pursuant to subsection (1) and then refer to subsection (3) once, thus indicating a simple error. Rather, counsel requested subsection (3) fees throughout his motion. See Mot. for Fees ‘H1! 1. 3, 4. Although ‘subsection (3) does not provide a substantive basis for awarding fees, we overlook counsel’s error and request that he cite the correct subsection in future appellate motions.’ Since we affirm the order denying a directed verdict for the provider, this insurer obtains a “no liability” judgment, thus satisfying Section 768.79(1). Accordingly, we grant the i11surer’s motion for appellate fees pursuant to section 768.790), the correct subsection. Cf Jeflierson v. City ofLake City, 965 So. 2d 174, 175 (Fla. let DCA 2007). We resolve the parties other motions for appellate attorney’s fees by separate order. AFFIRMED IN PART, VACATED TN PART, and REMANDED. 2 Other panels granted fees pursuant to section 768.’/9(3). State Farm Fire & Cos. C0. v. Global Meal Rehab Center, 21 Fla. L. Weekly Supp. 11511 (Fla. llth Cir. Ct. Oct. 21, 2013); Progressive Auto Pm Ins. C0. v. Gary H. Dr‘Bla.s~i0, M11, P.A., 14 Fla. L. Weekly Supp. 534:. §Fla. 15th Cir. Ct. Mar. 23, 2007), cert. denied, 4D0'/-1640 (Fla. 4th DCA Aug. 6, 2007). See R. Reg. Fla. Bar 4~3.3 cmt. (“An advocate is responsible for pleadings and other documents preparecl for litigation”). [*5] (384 8—”l4 'l't :38 FROI‘4- F422 P0006/0007 F-677 i

IN THE CIRCUIT COURT OF THE

- ELEVENTH JUDICIAL CIRCUIT [N AND FOR

MIAMI-DADB COUNTY, FLORIDA

APPELLATE DIVISION

APPELLATE CASE NO. 12-157 AP

HEALTH USA CORPORATION, LOWER CASE NO. 09- 1233 SP 26 afa/0 Kenia Gonzalez, Appellfl11t"PlB.iHtiff, <::7L& Q MW

V.

.5- £2. U.S. SECURITY INSURANCE COMPANY, _l _ -.1

K 1.

AppelleeHDefendant. 1‘-'1' . / Marlene s. Reiss, fi'0m Ma1'lene s. Reiss, Esq. P.A., for the Appellant-Plaintiff. ' _ . ~:; I‘;tg {wt 3;: w Douglas H. Stein, from Seipp & Flick, for the Appellee-Defendant. Bef'0re‘TINKLER MENDEZ, SAYFIE, and REBULL, H. ORDER GRANTING AND DEl1XLl‘1_(,iABPELLAT,QAlf1Q1?Ql;E3_X$l..§§i3,_E§ ' Case No. 12-157 AP On May 29, 2012, the provider moved this Court for section 627.4280), Florida Statutes, attorneys’ fees. Section 627.428(1) authorizes us to award fees to an insured when we adjudge “against the insurer”. Because we affirm the order denying the p1'ovider’s motion for directed verdict, the provider does not obtain a judgment against the insurer. Thus, we deny the prcvider’$ May 29, 2012 motion for section 627.428(l) appellate fees. _(_Zf_q:_s_e;{9_. 12-303 AP I.‘ On March 29, 2013, the insurer requested appellate atton1ey’s fees pursuant to section '768.'79(3). Although, section 768.79(3) does not provide a substantive basis to award appellate fees, we presume that the insurer’s appellate counsel intended to request fees pursuant to subsection (1); By affirming the order denying a directed verdict in the provider’s favor, this insurer satisfies section 768.79(I) by obtaining a “no liability” judgment. § 768.79(l),.Fla. Stat. [*6] 08-? 8—’i4 11:38 Accordingly, we grant the insurer's motion for section 763/79(1) appellate fiTi0l11.¢Y'5 few 63? Jefir-we v. City 0fLake City, 965 So. 2<1 174, 175 (Fla. lst non 2007) (affirming the order granting attorney fees and reasoning that although the proposal cited “a nonexistent statute as its basis, the notice ofproposal for settlement” cited “the correct statute number"). ll, On September 4, 2013, the provider requested section 627.428(1) appellate attorney’s fees. Because we vacated the order denying the insurer’s request for settlement proposal fees, ‘ this provider does not prevail by obtaining a judgment against the insurer. Therefore, section 627.428(1)does not entitle this provider to appellate fees. Accordingly, we deny this motion.