Bristol West Ins. Co. v. Care Therapy & Diagnostics, Inc., Not Reported in So.
2d (2008)
2008 WL 4005713
Only the Westlaw citation is currently available.
Florida Circuit Court, Thirteenth Judicial Circuit,
Hillsborough County,
Appellate Division.
BRISTOL WEST INSURANCE CO., Appellant,
v.
CARE THERAPY & DIAGNOSTICS, INC. (a/a/o
Emanuel Hernandez), Appellee.
Bristol West Insurance Co., Appellant,
v.
Care Therapy & Diagnostics, Inc. (a/a/o Emanuel
Hernandez), Appellee.
Appellate Case Nos. 05-11365, 06-3025.
| CLAUDIA R. ISOM, Presiding Circuit Judge.
May 23, 2008.
West KeySummary
1 Courts
Review of Proceedings
Remand was warranted for further proceedings
to determine the validity of the offer of
judgment in a provider’s small-claims action to
recover damages against a no-fault insurer for
medical services provided to the insured. The
trial court never reached the question of the
substantive validity of the offer of judgment. If
the offer was valid, then a hearing was required
to determine the amount of attorney fees due to
the insurer, as the prevailing party in light of the
zero verdict. West’s F.S.A. RCP Rule 1.442;
West’s F.S.A. § 768.79.
Cases that cite this headnote
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On review of a final order of the County Court
Hillsborough County, Florida, The Hon. Charlotte
Anderson, presiding, County Case No. 02-13616-SC.
Attorneys and Law Firms
Richard A. Sherman, Sr., Esquire, Ft. Lauderdale, FL, &
Kevin Fitzsimmons, Esquire, Tampa, FL, Attorneys for
Appellant.
Timothy Patrick, Esquire, Tampa, FL, Mark A. Boyle,
Esquire, Fink & Boyle, Ft. Myers, FL, Attorneys for
Appellee.
Opinion
*1 In this appeal, Appellant Security National Insurance
Company, formerly known as Bristol West (“insurer”),
appeals the trial court’s award of attorney’s fees to
Appellee Care Therapy & Diagnostics, Inc. (“provider”),
after the jury awarded the provider zero damages for its
claim. The insurer claims that the trial court erred both
when it awarded fees to the provider when the provider
received zero damages and when it failed, to award
attorney’s fees to the insurer in light of the offer of
judgment. We agree that the trial court erred in awarding
fees to the provider and remand this cause for the trial
court to conduct proceedings to determine the validity of
the insurer’s offer.
This case involved highly contentious “small claims”
under $5000. The insurer stopped paying personal injury
protection (PIP) benefits after an independent medical
examination determined that the insured had reached
maximum medical improvement. The parties engaged in
extensive discovery prior to a jury trial, which was held
May 12, 2005. Prior to trial, on March 25, 2005, the
insurer served the provider with a proposal for settlement
pursuant to Rule 1.442, Florida Rule of Civil Procedure
and section 768.79, Florida Statutes. The proposal offered
to settle the matter for a total of $251, exclusive of
attorney’s fees.
At the conclusion of the trial, the jury returned a verdict
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Bristol West Ins. Co. v. Care Therapy & Diagnostics, Inc., Not Reported in So.2d (2008)
on a two-part verdict form agreed to by the parties. The
first question on the form asked the jury to determine
whether “any of the treatment rendered by [the provider]
was reasonable, necessary, and related to the motor
vehicle accident that occurred on March 20, 2002?” If the
response to the foregoing was affirmative, which it was,
the jury was to proceed to the second part which was
“what amount of the charges submitted does the
defendant owe?” To this question, the jury responded
“$0.” Despite the zero verdict, the trial court entered an
order awarding attorney’s fees to the provider in the
amount of $184,000, finding that the provider prevailed
on the significant issue in the case, that issue being the
reasonableness, relatedness and necessity of the treatment.
Also, the trial court stated that it “could envision no
scenario in which section 768.79, Florida Statutes would
apply without the operation of Rule 1.442,” Florida Rules
of Civil Procedure.1 The trial court’s order added that even
if the rule had been invoked, the insurer’s proposal was
not timely. This appeal followed.
Although not clearly framed, the issues before the court
are whether section 627.428, Florida Statutes, supports
the award of attorney’s fees when a plaintiff recovers a
zero verdict; whether Rule 1.442 applies and, if not,
whether 768.79, Florida Statutes can stand alone to
support an award of attorney’s fees based upon an offer of
judgment, and whether the significant issues test applies
to awards of attorney’s fees. While we agree that the trial
court erred in awarding attorney’s fees to the provider in
this case, and that proposals for settlement may be filed in
small claims, for reasons discussed below, we disagree
with the insurer that Rule 1.442 applies.
*2 This case involves the interplay between the Small
Claims Rules and the Rules of Civil Procedure. According
to Rule 7.020, Florida Small Claims Rules, only certain
rules of civil procedure apply to small claims. The small
claims rules are, as one might guess, less formal than the
civil procedure rules. Less formality in small claims
promotes the interest of quickly moving cases through the
court system.2 Many parties are not represented by
counsel and most cases do not require the formality that
the civil rules provide. Small Claims Rule 7.020 requires
additional Rules of Civil Procedure to be specifically
invoked, either by the parties or by the court. We could
find no decisional authority on whether an invocation of
the formal rules may be effected by ‘waiver’ or ‘consent’
and we do not make that determination here. There is no
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dispute that Rule 1.442 was not specifically invoked.
Applicability of § 768.79 without the operation of Rule
1.442: Because there is no doubt that the offer exceeded
the verdict, we do not discuss that aspect of the offer. But
assuming that the small claims rules apply and that Rule
1.442 was not properly invoked, we disagree with the trial
court that section 768.79, Florida Statutes is inapplicable.
See Tran v. State Farm Mutual Automobile Ins. Co., 860
So.2d 1000 (Fla. 1st DCA 2003); State Farm Mut.
Automobile Ins. Co. v. Nichols, 932 So.2d 1067
(Fla.2006)(Section 768.79, Florida Statutes applies to
small claims). Although the provider stopped short of
arguing that section 768.79, Florida Statutes could apply
without the operation of Rule 1.442, the trial court’s order
clearly demonstrates that she considered the matter and
concluded that the former could not operate without the
latter.
Section 768.79, Florida Statutes states:
(1) In any civil action for damages filed in the courts
of this state, if a defendant files an offer of judgment
which is not accepted by the plaintiff within 30 days,
the defendant shall be entitled to recover reasonable
costs and attorney’s fees incurred by her or him or on
the defendant’s behalf pursuant to a policy of
liability insurance or other contract from the date of
filing of the offer if the judgment is one of no
liability or the judgment obtained by the plaintiff is
at least 25 percent less than such offer, and the court
shall set off such costs and attorney’s fees against the
award. Where such costs and attorney’s fees total
more than the judgment, the court shall enter
judgment for the defendant against the plaintiff for
the amount of the costs and fees, less the amount of
the plaintiff’s award. If a plaintiff files a demand for
judgment which is not accepted by the defendant
within 30 days and the plaintiff recovers a judgment
in an amount at least 25 percent greater than the
offer, she or he shall be entitled to recover reasonable
costs and attorney’s fees incurred from the date of
the filing of the demand. If rejected, neither an offer
nor demand is admissible in subsequent litigation,
except for pursuing the penalties of this section.
*3 (2) The making of an offer of settlement which is
not accepted does not preclude the making of a
subsequent offer. An offer must:
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Bristol West Ins. Co. v. Care Therapy & Diagnostics, Inc., Not Reported in So.2d (2008)
(a) Be in writing and state that it is being made
pursuant to this section.
(b) Name the party making it and the party to whom
it is being made.
(c) State with particularity the amount offered to
settle a claim for punitive damages, if any.
(d) State its total amount.
The offer shall be construed as including all damages
which may be awarded in a final judgment.
(3) The offer shall be served upon the party to whom it
is made, but it shall not be filed unless it is accepted or
unless filing is necessary to enforce the provisions of
this section.
(4) An offer shall be accepted by filing a written
acceptance with the court within 30 days after service.
Upon filing of both the offer and acceptance, the court
has full jurisdiction to enforce the settlement
agreement.
***
(6) Upon motion made by the offeror within 30 days
after the entry of judgment or after voluntary or
involuntary dismissal, the court shall determine the
following:
(a) If a defendant serves an offer which is not accepted
by the plaintiff, and if the judgment obtained by the
plaintiff is at least 25 percent less than the amount of
the offer, the defendant shall be awarded reasonable
costs, including investigative expenses, and attorney’s
fees, calculated in accordance with the guidelines
promulgated by the Supreme Court, incurred from the
date the offer was served, and the court shall set off
such costs in attorney’s fees against the award. When
such costs and attorney’s fees total more than the
amount of the judgment, the court shall enter judgment
for the defendant against the plaintiff for the amount of
the costs and fees, less the amount of the award to the
plaintiff.
Courts have already said that proposals for settlement
may be made in small claims cases. 3 In response to a
certified question as to the applicability of Rule 1.442 in
© 2018 Thomson Reuters. No claim to original U.S. Government Works.
such cases, the companion rule, the Florida Supreme
Court has not decided whether one may exist without the
other.4 We conclude that it does. Although the rule of
procedure does provide the procedural framework in
which an offer of judgment must proceed, for reasons
discussed below, we determine that the statute provides
sufficient procedural guidance to make it an independent
authority for the award of attorney’s fees without the
invocation of Rule 1.442 in small claims cases.
The Supreme Court is charged with the rule making
authority for the courts.5 When a rule is adopted by the
Supreme Court concerning practice and procedure and
such rule conflicts with a statute, the rule supersedes the
statutory provision.6 In the absence of a procedural
provision in the Rules, procedural provisions in statutes
may nonetheless apply.7
Because the parties must invoke Rules of Civil Procedure,
it is unlikely that a party who may be subject to an offer
filed under the auspices of Rule 1.442 will agree to
invoke it. Given this, and the Supreme Court’s
determination that Section 768.79, Florida Statutes
applies in small claims cases, aside from the insurer’s
argument that Rule 1.442 is self-executing, with which
this court disagrees, the only conclusion one can reach is
that the Rule is unnecessary to effect the intent of section
768.79.
*4 If section 768.79, Florida Statutes, applies without the
operation of Rule 1.442, the time for filing an offer of
judgment/proposal for settlement would be somewhat
more relaxed. Indeed, as long as the offeree had 30 days
to respond after service8 but before trial, an offer could be
deemed timely under the statute, even if it were filed
fewer than 90 days after the complaint. Under the facts of
this case, the offer, which was served on March 25, 2004,
46 days before the trial week, afforded the provider 35
days, including an additional five day’s mailing time, in
which to accept the offer. That was 11 days before the
scheduled trial week.
Prevailing Party/Significant Issue: We turn our attention
to the prevailing party/significant issue question. The trial
court concluded that the provider prevailed on the
significant issue because the jury answered the question
whether any of the treatment was reasonable, related, and
necessary in the affirmative. This, too, was error. At least
one district court has said that the “significant issues” test
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Bristol West Ins. Co. v. Care Therapy & Diagnostics, Inc., Not Reported in So.2d (2008)

does not even apply to cases in which attorney’s fees can
be awarded pursuant to section 627.428, Florida Statutes.9
All of the cited authority for the award of attorney’s fees
in this context actually applied to costs, not attorney’s
fees.
As for the prevailing party, some decisional authority
exists to support that a net judgment is not always the sole
consideration in determining the prevailing party.10 But in
the absence of an equitable principal on which to base the
conclusion that the provider was the prevailing party in
this case, we conclude that this rationale is inapplicable to
the situation in the present case. If section 768.79, Florida
Statutes applies, and in light of a zero verdict, the insurer
is the prevailing party.11
In light of the foregoing, the attorney’s fee award must be
set aside. Although we conclude that offers of judgment
may be filed in small claims cases, the trial court never
reached the question of the substantive validity of the
offer; therefore, we remand the matter for further
proceedings to determine the validity of the offer of
judgment.12 If the trial court finds that it is valid, then it
should conduct a hearing to determine the amount of
attorney’s fees due the insurer, keeping in mind the trend
begun in Progressive Exp. Ins. Co. v. Schultz,13 which said,
regarding an exorbitant award for attorney’s fees, that
“[n]o court is obliged to approve a judgment which so
obviously offends even the most hardened appellate
conscience and which is so obviously contrary to the
manifest justice of the case; indeed, it is obliged not to.”
Courts should take into account the amount in controversy
in awarding fees. An award of attorney’s fees in the
amount of $184,000 for a small claim does not reflect that
this was done. Indeed, in light of the zero judgment, not
only was any award in favor of the provider wrong, it
appears to be punitive.
*5 If, on the other hand, the court concludes that the offer
is invalid, each party would bear its own fees. Where the
dispute involves monies owed, if the judgment is $0, then
the party receiving $0 cannot recover costs.14
PENDINO and NIELSEN, JJ. Concur.
All Citations
Not Reported in So.2d, 2008 WL 4005713

Footnotes

1 Neither party had expressly invoked Rule 1.442 or any other rule of civil procedure.

2 Metro Ford, Inc. v. Green, 724 So.2d 706, 707 (Fla. 3d DCA 1999)(small claims designed for speedy
resolution of disputes over minor claims).

3 U.S. Security Ins. Co. v. Cahuasqui, 760 So.2d 1101 (Fla. 3d DCA 2000) Tran v. State Farm Mutual
Automobile Ins. Co., 860 So.2d 1000 (Fla. 1st DCA 2003); State Farm Mut. Automobile Ins. Co. v. Nichols,
932 So.2d 1067 (Fla.2006)(Section 768.79, Florida Statutes applies to small claims).

4 Tran v. State Farm Mutual Automobile Ins. Co., 939 So.2d 96 (Fla.2006).

5 Art. V, § 2(a), Fla. Const.

6 Section 25.371, Florida Statutes.

7 See generally National Leasing Corp. v. Bombay Hotel, Inc., 159 So.2d 111 (Fla. 3d DCA 1964)( [i]n
absence of provision in Rules of Civil Procedure governing proceedings in replevin, statutory provisions
for procedure in replevin as were in existence at time of adoption of Rules continued to control form,
content, procedure, and time for pleading in replevin actions).

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Bristol West Ins. Co. v. Care Therapy & Diagnostics, Inc., Not Reported in So.2d (2008)

8 We note that § 769.79(1) uses the term “files” which, when read in conjunction with subsection (3),
cannot be what the legislature intended. Rather, the term should be “serves.” Applying the rules of
statutory construction which require us to give effect to the legislature’s intent while not leading to an
absurd result, it is clear to this court that the term that should have been used is “served,” so that that
subsection (1) reads “... if a defendant serves an offer of judgment ...”

9 Danis Industries Corp. v. Ground Improvement Techniques, Inc., 645 So.2d 420 (Fla.1994).

10 See generally Prosperi v.Code, Inc., 626 So.2d 1360 (Fla.1993)( [i]n considering whether to apply net
judgment rule for purposes of award of attorney’s fees in mechanics’ lien foreclosure action, fact that
claimant obtains net judgment is significant factor but need not control determination of who should be
considered prevailing party).

11 This assumes that the offer of judgment, which was for an amount of $251 excluding attorney’s fees,
was a valid one in all other respects.

12 The parties address the validity of the offer; however, neither has made clear that the trial judge had an
opportunity to do so. The trial judge made no finding as to the offer’s validity in the order, and, given
that the trial judge determined that the offer was invalid on purely procedural grounds, it seems unlikely
that she ever addressed its substantive aspects.

13 948 So.2d 1027 (Fla. 5th DCA 2007)

14 Tacher v. Mathews, 845 So.2d 332 (Fla. 3d DCA 2003)( [a] zero-damages award constitutes a defense
judgment for purposes of a cost award under statute providing that a party “recovering judgment” is
entitled to costs).

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Works.

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