28 Fla. L. Weekly Supp. 417a
Online Reference: FLWSUPP 2805PANA
Insurance — Personal injury protection — Attorney’s fees — Proposal for settlement — Nominal offer — Insurer that alleged that insured had willfully failed to attend examination under oath, and obtained judgment in its favor on that ground, had reasonable basis to conclude that it had limited risk — Nominal offer was made in good faith
PANAMERICAN HEALTH CENTER, INC., Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2014-003623-CC-24, Section MB01. June 25, 2020. Stephanie Silver, Judge. Counsel: DePrimo Fleites, P.A., for Plaintiff. Beighley, Myrick, Udell & Lynne, P.A., Miami, for Defendant.
[Editor’s note: Paragraph numbers are as they appear on court document.]
ORDER GRANTING DEFENDANT’S MOTION FOR ATTORNEY’S FEES AND COSTS
THIS CAUSE having come before the Court on the Defendant’s Motion to Tax Attorney’s Fees and Costs, and this Court having reviewed the excellent pleadings filed by the parties, having heard an extensive oral argument, and having been provided with subsequent memorandum of law, this Court hereby GRANTS the Defendant’s Motion for Attorney’s Fees and Costs. The Court finds as follows:
1) This lawsuit was a PIP lawsuit in which the Defendant refused to pay the Plaintiff medical provider because it believed the insured had not properly complied with the condition precedent of attending the Examination Under Oath (EUO).
2) Geico maintained this position from its response to the demand letter, after the lawsuit was filed, and filed a Motion for Summary Judgment.
3) Very close to the beginning of the formal litigation in this case, the Defendant made a nominal proposal for settlement (PFS) in the amount of $500. The Plaintiff rejected this offer.
4) At the Defendant’s Motion for Final Summary Judgment on January 29, 2018, this Court’s predecessor granted the Defendant’s Motion finding that the insured failed to attend the two EUOs set despite the Plaintiff’s argument that the insured may not have received the formal requests to attend the EUO. Final Judgment was issued on January 31, 2018. This Motion followed.
5. The Defendant asks this Court to award attorneys’ fees and costs in this case based on the Plaintiff’s rejection of its PFS. Plaintiff argues that the PFS was not made in good faith because it was not only nominal but because the offer was not made in good faith.
6. In order to find a PFS was not made in good faith, the offeror must have had no reasonable basis to believe the exposure was nominal. The offeror must solely have had a reasonable basis to make the offer. Miccosukee Tribe of Indians of Florida v. Lewis Tein P.L., 277 So.3d 299 (Fla. 3d DCA 2019) [44 Fla. L. Weekly D2094a]; Dep’t of Highway Safety v. Weinstein, 747 So.2d 1019 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D2799b].
7. An offeror only has to believe the exposure was nominal and not in bad faith. State Farm Fla. Ins. Co. v. Laughlin, 118 So.3d 314 (Fla. 3d DCA 2013) [35 Fla. L. Weekly D1934a] (holding that when an insured fails to comply with the condition precedent to filing a lawsuit against an insurance company, a nominal PFS is made in good faith).
8. In the instant case, the Defendant obtained a Final Judgment in its favor holding that the insured had failed to comply with the EUO. This fact supports the argument that it had a reasonable basis to conclude that the Defendant had limited risk in this case. Downs v. Coastal Systems Intern., Inc., 972 So.2d 258 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D107a].
Therefore, this Court, when presented with the facts before it as they currently stand and having reviewed the law in this Circuit, believes that the offer was made in good faith. The prior Court ruled that the insured had willfully failed to appear at the EUO. The Defendant’s Motion is GRANTED.