UNITED AUTOMOBILE INSURANCE COMPANY

v.

PALM REHABILITATION INC

%Q .Z\ W5 United Automobile Insurance Company (“United”) appeals an award of attorney’s fees to Palm Rehab, Inc. a/a/o Heriberto Paz (“Palm Rehab”) following a trial in which ajury awarded Palm Rehab less than United offered in a presuit settlement. Consequently, the result ofthis appeal is foretold and preordained by Danis Industries Corporation v. Ground Improvement 4; ,,_,(P 1:11;“ ,.. = .. . 1' "

NOT FINAL UNTIL TIME EXPIRES

TO FILE REHEARING MOTION,

AND IF FILED, DISPOSED OF. IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY,

FLORIDA

APPELLATE DIVISION

CASE NOS.

13-268-AP & I3-288-AP LOWER CASE NO. 08-38068 CC 23

UNITED AUTOMOBILE INS. CO.

APPELLANT, PALM REHAB, INC. a/a/o HERIBERTO PAZ,

APPELLEE.

/

OPINION

Opinion filed: April I3, 2015. ‘K /3,, W . .753, , M r -- a ‘:33

V.

"‘ ¢ jg. 1: “Q-if-' ¢' J On Appeal from the County Court for Miami-Dade County, Florida, Judge Myriam Lehr. Michael J. Neimand, Esq., for Appellant Marlene Reiss, Esq., for Appellee Before MIGUEL M. DE LA O, STACY D. GLICK, AND RODOLFO RUIZ, JJ.

DE LA O, J.

ml s\ W »A »,‘Ail, §.%‘I,I_&3Ka% *a<:¢1~:l~‘~ '1» ,» %Q .Z\ W5 United Automobile Insurance Company (“United”) appeals an award of attorney’s fees to Palm Rehab, Inc. a/a/o Heriberto Paz (“Palm Rehab”) following a trial in which ajury awarded Palm Rehab less than United offered in a presuit settlement. Consequently, the result ofthis appeal is foretold and preordained by Danis Industries Corporation v. Ground Improvement 4; ,,_,(P 1:11;“ ,.. = .. . 1' " [*2] Page² of4 Case No. 13-268-AP & 13-288-AP Techniques, Inc, 645 So. 2d 420 (Fla. 1994) (“Danis”), and its progeny,‘ and this Court’s prior 1. . - A ‘,1 ru mgs in United Automobile Ins. Co. v. A Rehab Assoc. ofSouth Fla. corp, 22 Fla. L. Widy Supp. 519a (1 lm Jud. Cir. Ct., January 9, 2015) (“United v. A Rehab”) and UnitedAutomobile Ins. Co. v. Afliliated Health Centers, Inc, Case No. 12-206 (1 lth Jud. Cir. Ct., January 16, 2015) (“United v. Afiliated Health”).²

DISCUSSION

Prior to Palm Rehab filing suit as the assignee of United’s insured, United tendered a check to Palm Rehab for $2,606.10 in full and final settlement of all potential claims. Following trial, the jury awarded Palm Rehab $3,463.00, which resulted in an award of PIP benefits of $1 ,970.40.3 The trial court added $839.05 in prejudgment interest, an amount that accrued over I The Florida Supreme Court reaffirmed its holding in Danis in Scottsdale Insurance Company v. DeSalvo, 748 So. 2d 941 (Fla. 1999) and State Farm Mutual Automobile Insurance Co. v. Nichols, 932 So. 2d 1067 (Fla. 2006). Together, Danis and DeSalvo drew a clear line between the pre-offer and post~offer periods. Unless and until the insurer offers to pay the insured's damages plus attorney’s fees, costs, and interest, the “one-way street” under section 627.428 entitles the insured to attorncy’s fees. But once such an offer is made and rejected, the “one-way street” ends. The insured, having turned down the full amount she is owed, cannot claim the protection of section 627.428. Id. at 1074. 2 We incorporate the rationale of these Circuit panel opinions and adopt them as our own. I United’s presuit settlement offer was actually for $4,257.62; $2,606.10 is the remaining total after applying the $1,000.00 deductible and reducing the benefits payment by 20% per the applicable insurance policy. Because the trial court made the same adjustments to the jury’s award of benefits due to Palm Harbor, $2,606.10 vs. $1970.40 is an “apples to apples” comparison. Page² of4 Case No. 13-268-AP & 13-288-AP Techniques, Inc, 645 So. 2d 420 (Fla. 1994) (“Danis”), and its progeny,‘ and this Court’s prior 1. . - A ‘,1 ru mgs in United Automobile Ins. Co. v. A Rehab Assoc. ofSouth Fla. corp, 22 Fla. L. Widy Supp. 519a (1 lm Jud. Cir. Ct., January 9, 2015) (“United v. A Rehab”) and UnitedAutomobile Ins. Co. v. Afliliated Health Centers, Inc, Case No. 12-206 (1 lth Jud. Cir. Ct., January 16, 2015) (“United v. Afiliated Health”).² Palm Rehab attempts to avoid the result which binding precedent dictates by adding prejudgment interest to the jury’s award and claiming that the result is a final judgment which exceeds United’s presuit settlement offer. Palm Rehab’s argument is unavailing because it is plainly addressed — and rejected - by Danis.

DISCUSSION

Prior to Palm Rehab filing suit as the assignee of United’s insured, United tendered a check to Palm Rehab for $2,606.10 in full and final settlement of all potential claims. Following trial, the jury awarded Palm Rehab $3,463.00, which resulted in an award of PIP benefits of $1 ,970.40.3 The trial court added $839.05 in prejudgment interest, an amount that accrued over I The Florida Supreme Court reaffirmed its holding in Danis in Scottsdale Insurance Company v. DeSalvo, 748 So. 2d 941 (Fla. 1999) and State Farm Mutual Automobile Insurance Co. v. Nichols, 932 So. 2d 1067 (Fla. 2006). Together, Danis and DeSalvo drew a clear line between the pre-offer and post~offer periods. Unless and until the insurer offers to pay the insured's damages plus attorney’s fees, costs, and interest, the “one-way street” under section 627.428 entitles the insured to attorncy’s fees. But once such an offer is made and rejected, the “one-way street” ends. The insured, having turned down the full amount she is owed, cannot claim the protection of section 627.428. Id. at 1074. 2 We incorporate the rationale of these Circuit panel opinions and adopt them as our own. I United’s presuit settlement offer was actually for $4,257.62; $2,606.10 is the remaining total after applying the $1,000.00 deductible and reducing the benefits payment by 20% per the applicable insurance policy. Because the trial court made the same adjustments to the jury’s award of benefits due to Palm Harbor, $2,606.10 vs. $1970.40 is an “apples to apples” comparison. [*3] Page 3 of 4 Case No. 13-268—AP & 13-288-AP the lengthy period the case was litigated, and the overwhelming percentage of which accrued after United’s presuit settlement offerfl The trial court concluded that the amount ofthe final judgment exceeded the presuit settlement offer (due solely to the addition of prejudgment interest) and, therefore, awarded Palm Rehab $129,750.00 in attorney’s fees. Palm Rehab makes two arguments to justify the award of attorney’s fees. Both are wrong. First, Palm Rehab argues that it is entitled to attorney’s fees because it obtained a final judgment; implicitly arguing that the amount of the final judgment is wholly irrelevant because Palm Rehab obtained a judgment against United} This argument ignores Danis and this Court’s rulings in United v. A Rehab and United v. /lfifiliated Health. The existence of a final judgment does not ipsofacto entitle Palm Rehab to an award of att0rney’s fees unless it exceeds United’s highest settlement offer. See Danis, at 421; Nichols, at 1074; Scottsdale, at 944; United v. A Rehab, at 4-5; United v. Afiiliated Health, at 3-4. Second, Palm Rehab argues that the amount of the final judgment obtained by Palm Rehab exceeded United’s presuit settlement offer when the prejudgment interest awarded by the trial court is counted as part of its recovery. However, prejudgment interest which accrues after 4 We question whether the award of prejudgment interest was appropriate in light of United’s presuit settlement offer exceeding the jury’s award. [Ajn insured or beneficiary cannot continue to incur attorney fees and costs or accrue interest and have those awarded against the insurer or surety after the insurer or surety has offered the full amount for which it has liability on the date it offers to make the payment. Danis, at 421-22 (emphasis added). However, United did not appeal the final judgment. Consequently, its request that we reverse the trial court’s award of prejudgment interest (Initial Br. at 22) is not properly before us. 5 “The only issue in this appeal is whether an insured who obtains a final judgment against an insurer is entitled to recover its statutory attorney’s fees.” Answer Br. At 6; “United may not now challenge an award of attorney’s fees that is based upon Palm Rehab undisputedly obtaining a final judgment in its favor, which United never appealed.” Id. at 8; “The plain fact is that Palm Rehab obtained a final judgment in its favor and is statutorily entitled to its attorney’s fees.” Id. at 10. Page 3 of 4 Case No. 13-268—AP & 13-288-AP the lengthy period the case was litigated, and the overwhelming percentage of which accrued after United’s presuit settlement offerfl The trial court concluded that the amount ofthe final judgment exceeded the presuit settlement offer (due solely to the addition of prejudgment interest) and, therefore, awarded Palm Rehab $129,750.00 in attorney’s fees. Palm Rehab makes two arguments to justify the award of attorney’s fees. Both are wrong. First, Palm Rehab argues that it is entitled to attorney’s fees because it obtained a final judgment; implicitly arguing that the amount of the final judgment is wholly irrelevant because Palm Rehab obtained a judgment against United} This argument ignores Danis and this Court’s rulings in United v. A Rehab and United v. /lfifiliated Health. The existence of a final judgment does not ipsofacto entitle Palm Rehab to an award of att0rney’s fees unless it exceeds United’s highest settlement offer. See Danis, at 421; Nichols, at 1074; Scottsdale, at 944; United v. A Rehab, at 4-5; United v. Afiiliated Health, at 3-4. Second, Palm Rehab argues that the amount of the final judgment obtained by Palm Rehab exceeded United’s presuit settlement offer when the prejudgment interest awarded by the trial court is counted as part of its recovery. However, prejudgment interest which accrues after 4 We question whether the award of prejudgment interest was appropriate in light of United’s presuit settlement offer exceeding the jury’s award. [Ajn insured or beneficiary cannot continue to incur attorney fees and costs or accrue interest and have those awarded against the insurer or surety after the insurer or surety has offered the full amount for which it has liability on the date it offers to make the payment. Danis, at 421-22 (emphasis added). However, United did not appeal the final judgment. Consequently, its request that we reverse the trial court’s award of prejudgment interest (Initial Br. at 22) is not properly before us. 5 “The only issue in this appeal is whether an insured who obtains a final judgment against an insurer is entitled to recover its statutory attorney’s fees.” Answer Br. At 6; “United may not now challenge an award of attorney’s fees that is based upon Palm Rehab undisputedly obtaining a final judgment in its favor, which United never appealed.” Id. at 8; “The plain fact is that Palm Rehab obtained a final judgment in its favor and is statutorily entitled to its attorney’s fees.” Id. at 10. [*4] Page 4 of 4 Case No. 13-268-AP & 13-288-AP a settlement offer (which exceeds the insured’s recovery) is not properly included when determining whether the recovery exceeded the settlement offer. Danis clearly explained that the proper calculation includes only prejudgment interest due at the time of the presuit offer. We emphasize, however, that any offer of settlement shall be construed to include all damages, attorney fees, taxable costs, and prejudgment interest which would be included in afinaljudgment ifthefinaljudgment was entered on the date ofthe offer of settlement. We make this point so that it is plain that the insurer or surety relieves itself from further exposure to the insured or beneficiary’s attorney fees at the point in time that the insurer or surety offers in settlement the full amount which the insured or beneficiary would be entitled to recover from the insurer or surety at the time the offer is made. Danis, at 421~22 (emphasis added).

CONCLUSION

The trial court erred in granting Palm Rehab’s motion for attorney’s fees. Therefore, its decision is REVERSED, the award of attorney’s fees is VACATED, and the matter is remanded for proceedings consistent with this opinion. GLICK, J. and RUIZ, J. concur. /int? <9/@?/ ¥4@UElL M. as/LA o Vs/fAcY D. GLICK

RODOLFO RUIZ

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~ilw:v-'4"""‘l"7".@ *5.- ie . I . .....-............~Mr \l\\ Page 4 of 4 Case No. 13-268-AP & 13-288-AP a settlement offer (which exceeds the insured’s recovery) is not properly included when determining whether the recovery exceeded the settlement offer. Danis clearly explained that the proper calculation includes only prejudgment interest due at the time of the presuit offer. We emphasize, however, that any offer of settlement shall be construed to include all damages, attorney fees, taxable costs, and prejudgment interest which would be included in afinaljudgment ifthefinaljudgment was entered on the date ofthe offer of settlement. We make this point so that it is plain that the insurer or surety relieves itself from further exposure to the insured or beneficiary’s attorney fees at the point in time that the insurer or surety offers in settlement the full amount which the insured or beneficiary would be entitled to recover from the insurer or surety at the time the offer is made. Danis, at 421~22 (emphasis added).

CONCLUSION

The trial court erred in granting Palm Rehab’s motion for attorney’s fees. Therefore, its decision is REVERSED, the award of attorney’s fees is VACATED, and the matter is remanded for proceedings consistent with this opinion. GLICK, J. and RUIZ, J. concur. /int? <9/@?/ ¥4@UElL M. as/LA o Vs/fAcY D. GLICK

RODOLFO RUIZ

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