NORMAN ROYSTER, APPELLANT,
v.
KARYN D. VAN DER MEULEN, APPELLEE
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In this automobile accident negligence case, the defendant appealed a jury verdict awarding the plaintiff $3,700 in damages and costs. The court reversed the award of costs to the plaintiff and the denial of defendant's motion for costs and attorney's fees, holding that a defendant who made an offer of judgment is entitled to recover costs and fees under Rule 1.442 and Section 768.79 even when the defendant's liability insurance carrier paid those expenses.
The trial court erred in denying appellant's motion for costs and attorney's fees. A defendant who made an offer of judgment is entitled to recover costs and attorney's fees under Rule 1.442 and Section 768.79 even though the defendant's liability insurance carrier, rather than the defendant personally, paid those expenses. The statute and rule do not limit recovery only to parties who personally incurred the costs and fees.
[1] A defendant who makes a valid offer of judgment that is not accepted by the plaintiff is entitled to recover reasonable costs and attorney's fees incurred after the offer…
[2] A party's entitlement to recover costs and attorney's fees under a rule or statute governing offers of judgment is not defeated by the fact that a liability insurance car…
Previewing 2 of 4 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“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.”
Rule 1.442 establishes the basis for recovering costs when an offer of judgment is rejected and the plaintiff obtains a less favorable judgment.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellee Van Der Meulen sued appellant Royster for negligence arising from an automobile accident. Appellant served two offers of judgment (one under …
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[*1205] NIMMONS, Judge.
In this automobile accident case, the appellant (defendant below) appeals from a final judgment which awarded damages assessed by the jury in the sum of $3,700 and costs in the sum of $1,046.90, and from an order entered on the same date denying appellant’s motion to tax costs and attorney’s fees pursuant to Rule 1.442, Florida Rules of Civil Procedure, and Section 768.-79, Florida Statutes (1987). We reverse the award of costs to the appellee and the denial of appellant’s motion for costs and attorney’s fees and remand for further proceedings.
The appellee, Karyn Van Der Meulen, sued the appellant, Norman Royster, for negligence arising out of an automobile accident. Appellant served appellee with two offers of judgment, one pursuant to Rule 1.442 and one pursuant to Section 768.79, Florida Statutes, each in the amount of $6,501. Appellee did not respond to either offer, thereby rejecting both by operation of law.
At the ensuing trial, the jury returned a verdict in favor of appellee in the amount of $3,700. Appellee filed her motion to tax costs pursuant to Chapter 57, Florida Statutes. Appellant then filed his motion to tax costs and attorney’s fees in accordance with his offers of judgment.
The trial judge granted appellee’s motion to tax costs and denied appellant’s motion to tax costs and attorney’s fees, reasoning that because appellant’s liability insurance carrier (and not appellant himself) paid the costs and fees incurred in defending appel-lee’s claim, appellant was not entitled to recover those costs and fees. The trial court entered final judgment in favor of appellee and an order in accordance with its above rulings.
The issue on appeal is limited to whether the trial court erred in awarding costs to the appellee and in denying the appellant’s motion to tax attorney’s fees and costs against the appellee.
Rule 1.442 provides, in pertinent part:
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 pertinent portion of Section 768.79 is set forth as follows:
(l)(a) In any action to which this part applies, 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 from the date of filing of the offer if 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.
The appellee asserts that the appellant cannot recover costs and fees because the language of both the rule and the statute limit recovery to a party who has incurred the costs and fees, thus disqualifying appellant inasmuch as the latter’s liability insurance carrier was obligated under the terms of the insurance contract to pay such costs and fees. We reject such strained interpretation of the statute and rule. Rather, we believe the rationale of both Couch v. Drew, 554 So. 2d 1185 (Fla. 1st DCA 1989), and Hough v. Huffman, 555 So. 2d 942 (Fla. 5th DCA 1990),1 is controlling and requires reversal. We certify conflict with Aspen v. Bayless, 552 So. 2d 298 (Fla. 2nd DCA 1989).
The judgment and order are reversed and the cause remanded for further proceedings consistent with this opinion.
SMITH and ALLEN, JJ., concur. . Both Couch and Hough were decided subsequent to the entry of the subject judgment.
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Rondoe Marie Williams v. Jeannine O. Brochu, 578 So. 2d 491 (Fla. 5th DCA 1991)…by the plaintiff: Aspen v. Bayless, 552 So. 2d 298 (Fla. 2d DCA 1989); Turner v. D.N.E., Inc., 547 So. 2d 1245 (Fla. 4th DCA 1989); and City of Boca Raton v. Boca Villas Corp., 372 So. 2d 485 (Fla. 4th DCA 1979)). See also Royster v. Van Der Meulen, 564 So. 2d 1204 (Fla. 1st DCA 1990). .See e.g., Florida Standard Jury Instructions in Criminal Cases 2.04(a); Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.1985). See also Bruce Construction Corp. v. The State Exchange Bank, 102 So. 2d 288 (Fla…
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Bailey v. Chamblee, 697 So. 2d 972 (Fla. 2d DCA 1997)…te, which did not contain the underlined phrase, the argument was rejected that a defendant represented by an insurance carrier could not recover attorney’s fees and costs because the carrier was not a party to the action. Royster v. Van Der Meulen, 564 So. 2d 1204 (Fla. 1st DCA 1990). See also Aspen v. Bayless, 564 So. 2d 1081 (Fla. 1990) (holding that party is not precluded from recovering costs under former version [*974] of Florida Rule of Civil Procedure 1.442 where someone other than named party pays or…
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Walker v. Bozeman, 243 F. Supp. 2d 1298 (N.D. Fla. 2003)…who prevails in an ordinary tort action recovers costs in the defendant's name, even if in fact the costs have been borne by (and as a practical matter any cost award will inure to the benefit of) an insurer. See, e.g., Royster v. Van Der Meulen, 564 So.2d 1204, 1205 (Fla. 1st DCA 1990). 14 .If Johnny Edward Bozeman pursues his claim for an affirmative judgment for fees and costs, notwithstanding the determination that he cannot recover such fees and costs from the survivors, then any such award wi…
Authorities Cited
- Aspen v. Bayless, 552 So. 2d 298 (Fla. 2d DCA 1989)
- Gordon T. Couch, M.D. v. Drew, 554 So. 2d 1185 (Fla. 1st DCA 1989)
- Smith v. State, 555 So. 2d 942 (Fla. 5th DCA 1990)
- Hough v. Huffman, 555 So. 2d 942 (Fla. 5th DCA 1990)