Check those form PFSes you are sending!

FLORIDA LAW WEEKLY

VOLUME 47, NUMBER 12

CASES FROM THE WEEK OF MARCH 25, 2022

COURT STRIKES DOWN PLAINTIFF’S PROPOSAL FOR SETTLEMENT FINDING IT TO BE AMBIGUOUS AND AMORPHOUS

Harris v. Tiner, 47 Fla. L. Weekly D633 (Fla. 2^nd DCA Mar. 25 2022):

The plaintiff sued the driver and owner (husband and wife), and then served proposals for settlement directed to both of them in 2018.  In 2019, he served a proposal directed only to the wife. The defendants rejected both proposals and the plaintiff received an arbitration award (yes, that is what the case says), which exceeded 125% of the offer. The court awarded the plaintiff attorney’s fees.

The defendants appealed the 2018 proposal for settlement, arguing it was ambiguous. The court agreed it was “fatally amorphous.”

The proposal simply stated that it was for $100,000. The proposal did not require the defendants to consent to a judgment in that amount as contemplated in section 768.79(1), nor did it require them to pay that sum, specify when payment had to be made, or obligate the plaintiff to dismiss his claims upon receipt of payment.  The only explicit obligation imposed upon the defendants required them to execute a stipulation for dismissal of plaintiff’s claims.

The court explained that a proposal for settlement is an offer to enter a contract. Contracts need to prescribe the parties’ obligations and expectations, and proposals for settlement are meant to end judicial labor, not create more. Because the original proposal did not clearly and definitely set forth terms that would permit the defendants to make an informed decision without needing clarification, the rejection of the proposal did not entitle the plaintiff to a fee award.

Finally, because the 2019 proposal was against the wife only, the court made clear that no fees could be awarded against the husband.

This case definitely has me thinking about reviewing the standard proposal for settlement that we send out from my firm, and I suggest all of you do the same.

TRIAL COURT ERRED BY TRANSFERRING VENUE SUA SPONTE WITHOUT ANY SHOWING THAT THE CHOSEN VENUE WAS IMPROPER, OR THAT TRANSFER WAS APPROPRIATE ON FORUM NON CONVENIENS GROUNDS

Advanced Physical Medicine v. Allstate Fire and Cas. Ins. Co., 47 Fla. L. Weekly D638 (Fla. 4^th DCA Mar. 16, 2022):

TRIAL COURT ERRED IN AWARDING DAMAGES TO MEDICAL PROVIDER/ASSIGNEE, WHERE ENTIRE AMOUNT BILLED FOR PROVIDER’S SINGLE CLAIM WAS WITHIN INSURED’S DEDUCTIBLE

Allstate Fire & Cas. Ins. Co. v. Sports, Spine Occupational Rehab, 47 Fla. L. Weekly D638 (Fla. 4^th DCA Mar. 16, 2022):

After an automobile accident, the provider rendered treatment to the insured, who assigned payment of the benefits to the provider. The provider was the first claimant to submit a bill to Allstate for services rendered after the accident. The claim was for $495.00 and Allstate determined the covered amount was $352.28 after applying the fee schedule provided for in the policy.

Allstate’s explanation of benefits noted that it applied the reduced amount to the $1,000 deductible under the policy, resulting in no payment to the provider. Subsequently, the deductible was exhausted by the charges of another provider, who was not a party to the suit.

The provider sued Allstate for PIP benefits. While the suit was pending, the Florida Supreme Court decided Progressive Select v. Florida Hospital Medical Center, 260 So.3^rd 219 (Fla. 2018). That case requires that the deductible be applied to the total medical charges prior to reduction under the reimbursement limitation set forth in section 627.736(5)(a)1.b.

On appeal, Allstate conceded that it improperly applied the deductible to the provider’s claim, but argued that even if it had done it properly, the deductible would not have been exhausted. The court explained the distinction between the insured’s obligation in relation to the deductible, and an insurer’s obligation to pay PIP benefits, noting that before the deductible is satisfied, the insurer is not reimbursing the medical provider. The insurance company’s obligation to pay does not ripen until the deductible is met. There is therefore no basis for concluding that the reimbursement limitation applies to charges included in the deductible, because the insured is obligated to pay those alone.

Here, the entitlement to PIP benefits ripened only after the full amount of the $1,000 was met. Therefore, Allstate was correct that even if it had properly applied the full amount of the provider’s first submitted bill to the deductible, it would not have been exhausted, and Allstate would not have been responsible for paying the balance.

WHEN A PARTY CLAIMS TRADE SECRET PROTECTION, A TRIAL COURT SHOULD CONDUCT AN IN-CAMERA ANALYSIS OR EVIDENTIARY HEARING, MAKE FINDINGS, AND IF APPROPRIATE, ORDER MEASURES TO PROTECT CONFIDENTIALITY OF SUCH TRADE SECRETS WHEN ORDERING THE DOCUMENTS PRODUCED

Bank of America v. The Bank of New York Mellon, 47 Fla. L. Weekly D659 (Fla. 3^rd DCA Mar. 16, 2022):

Additionally, to the extent that the orders under review required the production of materials for which Bank of America did not claim any trade secret, the court found there was no basis for certiorari.