MARIA T. HERNANDEZ, APPELLANT,
v.
TRAVELERS INSURANCE COMPANY, A FOREIGN CORPORATION, APPELLEE
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Maria Hernandez recovered a $600 judgment against her no-fault insurance carrier, Travelers Insurance, for personal injury protection benefits, but Travelers sought to assess post-judgment costs against her based on a pre-trial offer of judgment. The court held that because Travelers' offer of judgment named both Hernandez and her attorney, it implicitly included attorneys fees, making the offer more favorable than the final judgment and precluding cost shifting.
The court held that an offer of judgment naming both the plaintiff and her attorney can only be interpreted as including attorneys fees, making such an offer more favorable than a judgment for the same amount without attorneys fees. Because the final judgment of $600 plus attorneys fees exceeded the $600 offer in value, the offer-of-judgment rule did not permit cost shifting to Hernandez, and her attorneys fees award was proper.
[1] An offer of judgment that includes attorneys fees for the plaintiff and their attorney is interpreted as being more favorable than a monetary offer of the same amount if…
[2] A defendant may stop the running of further costs and attorneys fees by making a proper offer of judgment.
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 intelligence“The offer of judgment in itself is dispositive of this question as such offer was in favor of Hernandez and her attorney, Jerold Hart. The offer can only be interpreted as including attorneys fees for Hernandez which obviously, as the record reflects, is more favorable than the $600 offer.”
Establishes that naming the attorney in the offer necessarily includes attorneys fees as part of the offer's value
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Join FLexlaw to unlock all legal intelligenceHernandez sued Travelers for $832.85 in personal injury protection benefits under her no-fault insurance policy. Prior to trial, Travelers made a time…
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NATHAN, Judge.
Plaintiff, Maria Hernandez, having recovered a judgment in the amount of $600 against defendant, Travelers Insurance Company, appeals from a post-judgment order of the trial court assessing costs of $706.92 against her in favor of Travelers. Travelers cross-appeals from the same order awarding plaintiff $1,000 for her attorneys fees arising out of the suit.
Hernandez sued Travelers, her no fault insurance carrier under the Florida Automobile Reparations Reform Act,1 for personal injury protection benefits in the amount of $832.85 under the terms of her policy. Prior to trial, Travelers, pursuant to Rule 1.442, RCP, made a timely offer of judgment2 in the amount of $600 to allow judgment to be taken against it “in favor of plaintiff(s) Maria T. Hernandez, and her attorney, Jerold Hart.” This was refused by Hernandez.
Pursuant to §§ 627.428 and 627.-736(4) (b) and (c), Fla.Stat., after trial and entry of final judgment, Hernandez filed a motion to tax costs and to award attorneys fees and interest.3 Travelers moved to tax costs against Hernandez based on its offer of judgment. The trial court taxed costs against Travelers in the sum of $30 and awarded Hernandez the above mentioned attorneys fees. Travelers was awarded the costs herein appealed.
The question raised by Hernandez is whether the jury award of $536 plus interest and attorneys fees exceeds the $600 offer of judgment filed by Travelers and refused by Hernandez. We think so. The offer of judgment in itself is dispositive of this question as such offer was in favor of Hernandez and her attorney, Jerold Hart. The offer can only be interpreted as including attorneys fees for Hernandez which obviously, as the record reflects, is more favorable than the $600 offer. Had the offer been made only to the adverse party, (Hernandez), as provided by Rule 1.442, RCP, then the court could have awarded attorneys fees for work done up to the time of the offer of judgment. When an offer of judgment is made, the defendant stops the running of further costs 4 and attorneys fees.5 This is a proper interpretation of the Rule. Rule 1.442, RCP, is designed to induce or influence a party to settle litigation and obviate the necessity of a trial. Santiesteban v. McGrath, Fla.App.1975,320 So. 2d 476.
The offer of judgment being less than the amount recovered by Hernandez, the orders assessing costs against her in the sum of $706.92 and the order denying her interest are reversed.
Travelers argues on cross-appeal that the offer of judgment precluded an award for attorneys fees under § 627.-428(1) Fla.Stat., because the amount recovered by Hernandez was less than the offer of judgment. We reject this as unsound because the amount recovered was in excess of the offer of judgment as we have herein held. Therefore, the award of attorneys fees is affirmed.
Affirmed in part and reversed in part.
. Sections 627.730 to 627.741, Fla.Stat. . Rule 1.442, RC.P, entitled “Offer of Judgment” provides in pertinent part, “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 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. . . . ”
.Section 627.428, Fla.Stat., provides for an award of attorneys fees upon the rendition of a judgment or decree in a Florida State Court against an insurer and in favor of an insured. Section 627.736(4) (b), sets out the time period within which personal injury protection benefits must be paid, and if not paid, when they become overdue. Seetion 627.736(4) (c) provides that all overdue payments shall bear simple interest at the rate of 10 percent per annum.
. Rule 1.442, RCP, quoted in text of opinion; Truth Seeker Co. v. Durning, 2d Cir. 1945, 147 F. 2d 54, 56.
. See Johnny Morrow’s Wrecking Grew, Inc. v. Slate, Tex.Civ.App., 368 S.W. 2d 32, 33.
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Citator
Cited By (12 total)
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Peter Marich & Assocs., Inc. v. Powell, 365 So. 2d 754 (Fla. 2d DCA 1978)…1.442. Therefore, they contend, appellant was not a “prevailing party” in this litigation. While the trial court should take the offer of judgment into consideration when determining attorney’s fees upon remand, Hernandez v. Travelers Insurance Co., 331 So. 2d 329 (Fla.3d DCA 1976), we cannot accept ap-pellees’ argument that the offer of judgment should have been considered by the trial court in determining who was the “prevailing party” under § 713.29.…
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Unicare Health Facilities, Inc. v. Mort, 553 So. 2d 159 (Fla. 1989)…444 So. 2d at 1086-87; Parliament Ins. Co. v. That Girl in Miami, Inc., 371 So. 2d 1011 (Fla. 3d DCA 1979); Wisconsin Life Ins. Co. v. Sills, 368 So. 2d 920, 922 (Fla. 1st DCA), dismissed, 373 So. 2d 461 (Fla.1979); Hernandez v. Travelers Ins. Co., 331 So. 2d 329, 331 (Fla. 3d DCA 1976). The attorney’s fees provision of section 400.023 is merely a statutory right to seek fees. Clearly, statutory rights can be waived. Because we hold that accepting the offer of judgment effectively terminated the litigation…
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Tucker v. Shelby Mut. Ins. Co. OF Shelby, 343 So. 2d 1357 (Fla. 1st DCA 1977)…n overly technical interpretation of Rule 1.442. The rule is designed to induce a party to settle litigation and obviate the necessity of a trial. Santiesteban v. McGrath, 320 So. 2d 476 (Fla. 3rd DCA 1975); Hernandez v. Travelers Insurance Company, 331 So. 2d 329 (Fla. 3rd DCA 1976). The underlying purpose of encouraging settlement has been stated in Wright and Miller, Federal Practice and Procedure, section 3001 as follows: “Although the privilege of an offer of settlement is extended only to the party def…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mariano Santiesteban v. McGRATH, 320 So. 2d 476 (Fla. 3d DCA 1975)
- Truth Seeker Co., Inc. v. Durning, 147 F.2d 54 (2d Cir. 1945)