INSURANCE COMPANY OF NORTH AMERICA, A FOREIGN CORPORATION, ET AL., DEFENDANTS-APPELLANTS,
v.
JAMES H. TWITTY, PLAINTIFF-APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A plaintiff who rejects an offer of judgment and obtains a final judgment less favorable than the offer must pay the costs incurred by the defendant after the offer was made.
[1] An offer of judgment is not rendered conditional by its inclusion of "any outstanding liens" when the offer specifies a total monetary amount.
[2] A party who rejects an offer of judgment and subsequently obtains a final judgment less favorable than the offer must pay the costs incurred after the offer was made.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceThe defendant made an offer of judgment for $4,000, which the plaintiff rejected. The jury returned a verdict for the plaintiff for $2,500. The trial …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Taxable Costs cases and more on FLexlaw
MARKO, PAUL, Associate Judge.
This is an appeal from an order entered after a jury verdict against the defendant for damages in a personal injury action.
The defendant made an offer of judgment pursuant to F.R.C.P. 1.442 for “the total amount of $4,000. including plaintiff’s taxable costs accrued to the date hereof, as well as any outstanding liens.” The phrase “any outstanding liens” referred to the personal injury protection benefits carrier’s claim against the plaintiff.
The offer of judgment was not accepted and the jury returned a verdict of $2,500. in favor of the plaintiff. The plaintiff, thereafter, filed his motion to tax costs as follows:
1. Clerk of Circuit Court, fee for filing Complaint $ 20.00
2. State Insurance Commissioner, fee for service of process on Insurance Company of North America 5.00
3. Secretary of State, fee for attempted nonresident service of process on defendants, Mayfield and Worthen 10.00
4. Postage for registered, return receipt requested, deliver to addressee only, mailing of copies of Summons, Complaint and' Notice of Suit and Service of Process to defendants, Mayfield and Worthen 3.20
5. Mary Moore M. Ritchie, per diem, original and copy of deposition of James Moore, M.D. 86.35
6. Rebecca D. Dickerson, per diem, original and copy of deposition of George Debnam, M.D. 82.60
7. James Moore, M.D., expert witness fee for deposition 60.00
8. George Starke, M.D., witness fee and mileage for trial 12.52
9. Mary Moore M. Ritchie, per diem, originals and copies of depositions of Dr. Moore and Dr. Debnam 130.75
$ 410.42
The first four items of these costs, which amount to $38.20, were incurred by the plaintiff prior to the offer for judgment.
The plaintiff argues that the prevailing party is entitled to costs and cites F.S. 57.-041:
“57.041 Costs: recovery from losing party
“(1). The party recovering judgment shall recover all his legal costs and charges which shall be included in the judgment; but this section does not apply to executors or administrators in actions when they are not liable for costs.
Costs may be collected by execution on the judgment or order assessing costs.”
The defendant then filed its motion to tax costs against the plaintiff as follows:
"U Cost of copy of deposition of Dr. Moore $ 15.09
2) Cost of copy of deposition of Dr. Debnam 16.80
3) Attorneys' fee for covering depositions in North Carolina 287.50
4) Court Reporter's expense for attendance at trial 135.00
Balance forwarded $ 454,39
5) Costs of copies of depositions of Dr. Moore and Dr. Debnam (second time) 21.60
6) Attorney's fee subsequent to Offer of Judgment 1,300.00
Total $ 1,775.99"
The defendant argues that these costs were incurred by them after its offer of judgment for $4,000. which was refused and prior to jury verdict of $2,500. in favor of the plaintiff. Defendant relies on F.R.C.P. 1.442.
“Rule 1.442. Offer of Judgment
At any time more than ten days before the trial begins a party defending against a claim may serve an offer on the adverse party to allow judgment to be taken against him for the money or property or to the effect specified in his offer with costs then accrued. If the adverse party serves written notice that offer is accepted within ten days after service of it, either party may then file the offer and notice of acceptance with proof of service and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence of it is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the adverse party is not more favorable than the offer, he must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment that shall have the same effect as an offer made before trial if it is served with in a reasonable time, not less than ten days, before beginning of the hearing or trial to determine the amount or extent of liability.
Added effective Jan. 1, 1973 (265 So. 2d 21.)” (Emphasis supplied)
The trial court granted the plaintiff’s motion to tax cost against the defendant in the full amount of $410.42. The defendants’ motion to tax costs against the plaintiff was denied.
The plaintiff contends that he was not bound by Rule 1.442 because the offer of judgment was conditional; this argument is not well founded. The offer was for $4,000., the total amount and nothing more. The mere fact that the plaintiff could not compute its liability with the personal injury protection benefit carrier was of no concern to the defendants; the defendants’ offer was not conditional.
Therefore, the plaintiff is not entitled to costs incurred after refusing the offer when the judgment finally obtained by the plaintiff is not more favorable than the offer. (F.C.R.P. 1.442) The plaintiff is therefore entitled to only $38.20 in taxable costs.
The trial judge denied the defendants’ motion for costs. The taxation of costs in a civil action is a matter which lies within the broad discretion of the trial court.
We agree with the trial judge’s denial of $1,300. in attorney fees as these are not taxable costs under F.C.R.P. 1.442.
However, the Court, in its discretion, could allow the cost of depositions if they served a useful purpose. Cohn v. Florida National Bank at Orlando, Fla.App., 1969, 223 So. 2d 767. In addition, the trial judge could allow item number 3 in the amount of $287.50 for attorney fee for covering deposition in North Carolina, Bill Kelley Chevrolet, Inc. v. Kerr (Fla.App.1972), 258 So. 2d 280, and item number 4 in the amount of $135.00 for cost of court reporter’s expenses for attendance at trial, F.S. 57.071. In the event the trial judge, in his discretion, should grant these taxable items, his final order shall off-set the above costs taxable against the plaintiff, 49 C.J.S. Judgments § 566a and b and 49 C.J.S. Judgments § 568d.
Therefore, we affirm in part and reverse in part and remand to the trial court for further proceedings not inconsistent with this opinion.
CROSS and MAGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Goode v. Sarabjit Udhwani, 648 So. 2d 247 (Fla. 4th DCA 1994)…was filed. Although appellee recovered a judgment in her favor, we hold that § 768.79 controls over § 57.041, Florida Statutes (1991), which allows the taxation of costs by a party recovering a judgment. See Insurance Co. of North America v. Twitty, 319 So. 2d 141 (Fla. 4th DCA 1975). While Twitty dealt with former Rule of Civil Procedure 1.442 regarding offers of judgment, it is not materially different in its purpose from section 768.79. Appellee states that the statutes must be read in pari materia, which…
-
KAY v. Jerry B. Katzen, H. Stephen Rash, Rash & Katzen, P.A., 568 So. 2d 960 (Fla. 3d DCA 1990)…e — and we assume without deciding that it is not — the defendants would only be entitled to their taxable costs, not nontaxable costs as well. Horn v. Corkland Corp., 518 So. 2d 418, 421 (Fla. 2d DCA 1988); Insurance Co. of North America v. Twitty, 319 So. 2d 141, 143 (Fla. 4th DCA 1975), cert. denied, 330 So. 2d 22 (Fla.1976). Contrary to the defendant’s argument, nothing we have said in Santiesteban v. McGrath, 320 So. 2d 476, 478 (Fla. 3d DCA 1975), should be construed as announcing a contrary rule.…
-
Horn v. Corkland Corp., 518 So. 2d 418 (Fla. 2d DCA 1988)…ule, the Homs must pay the taxable costs incurred by Corkland after the offer. Corkland must pay the taxable costs incurred by the Homs prior to the offer as apportioned by the trial judge on remand. See Insurance Company of North America v. Twitty, 319 So. 2d 141 (Fla. 4th DCA 1975); see also Statewide Uniform Guidelines for Taxation of Costs in Civil Actions. Although Mary Horn was not a party at the time of the offer, we find costs are properly taxed against her in favor of Corkland. Although joined late…
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
- In re THE Fla. BAR: Rules of Civil Procedure, 265 So. 2d 21 (Fla. 1972)
- Cohn v. Fla. Nat'l Bank AT Orlando, 223 So. 2d 767 (Fla. 4th DCA 1969)
- Booker T. Wright v. State, 258 So. 2d 280 (Fla. 2d DCA 1972)
- Bill Kelley Chevrolet, Inc. v. Kerr, 258 So. 2d 280 (Fla. 3d DCA 1972)