The Week in Torts – Cases from the Week of November 8, 2019
Post-Offer Settlements May Get You PFS fees.
FLORIDA LAW WEEKLY
VOLUME 44, NUMBER 45
CASES FROM THE WEEK OF NOVEMBER 8, 2019
COURT INTERPRETS “POST-OFFER SETTLEMENT” TO MEAN A SETTLEMENT REACHED AFTER THE SERVICE OF THE OFFER THAT GETS ADDED INTO THE NET JUDGMENT TO DETERMINE FEES PURSUANT TO A PROPOSAL FOR SETTLEMENT.
Wilcox v. Neville, 44 Fla. L Weekly D2651 (Fla. 1st DCA October 30, 2019):
Plaintiff sued both the owner and driver of the vehicle who caused the accident which injured her. She served a proposal for settlement on the owner, which was accepted. The driver, however, did not accept the proposal made to him, and the parties proceeded to trial where the jury reached a verdict for the plaintiff.
After deducting set-offs for PIP benefits and the settlement with the owner, the parties agreed on an amount of the final judgment. They disagreed, however, on whether the plaintiff was entitled to attorney’s fees based on their divergent interpretations of the phrase “post-offer settlement” in §768.79(6). The disputed issue was whether the owner’s acceptance of the plaintiff’s proposal constituted a “post-offer settlement” that should be added back to the net judgment against the driver under §768.79(6).
While the Legislature did not define the phrase “post-offer settlement” in §768.79(6), the court turned to the dictionary definition of “post,” which is defined as “after.” As such, the court found the plain meaning of “post-offer” is to mean then after the offer (i.e., after the act of presenting something for acceptance). The court interpreted “post-offer settlement” to mean a settlement reached any time after service of the offer.
The clear and unambiguous language of §768.79(6) requires the judgment obtained to include the amount of any settlement with a co-defendant after the date of service of the offer on the defendant, by which the verdict was reduced. Here, it was undisputed that the plaintiff reached a settlement with the owner after serving the offer on the driver, and that the verdict was reduced by that amount. Accordingly, the trial court was required to add that same amount back to the net judgment to calculate the judgment obtained for determining entitlement to fees.
TRIAL COURT ERRED IN APPLYING THE KINNEY ANALYSIS IN CONSIDERING A MOTION TO TRANSFER VENUE UNDER §47.122.
Port Royal Property, LLC v. Woodson Electric Solutions, 44 Fla. L Weekly D2627 (Fla. 3rd DCA October 30, 2019):
The defendants moved to transfer venue from Miami-Dade County to Collier County pursuant to §47.122, Florida Statute, the state statute on “convenience” for venue purposes.
In their motion to transfer, the defendants argued that transfer was required under the Kinney v. Continental Insurance Co., analysis. The plaintiff responded by arguing that the Kinney factors were not applicable because they related to the transfer of a case filed in Florida to a jurisdiction outside of Florida based on forum non-conveniens, not a transfer from one Florida county to another.
While the trial court’s ruling on a motion to transfer venue under §47.122 is normally reviewed for an abuse of discretion, in this case, the trial court applied the incorrect standard when ruling on the motion to transfer, thereby requiring a de novo review.
The court ruled that the granting of the venue transfer based on Kinney was erroneous but remanded with directions for the trial judge to consider the motion under §47.122 instead.
MOBILE GYM NOT AN “UNINSURED AUTO” WITHIN THE MEANING OF PLAINTIFF’S POLICY – POLICY CLEARLY PROVIDED THAT A VEHICLE USED “AS A PREMISES” IS NOT AN UNINSURED AUTO, AND THIS TRUCK WAS BEING USED AS A PREMISES WHEN THE NEGLIGENCE OCCURRED.
Deutsch v. Geico, 44 Fla. L Weekly D2639 (Fla. 4th DCA October 30, 2019):
A man operated the mobile gym he owned out of the back of an Isuzu truck. To train his clients, he would drive the gym to the client’s location, and conduct the workout in the back of the truck. The gym was equipped with exercise machines and equipment, some of which was bolted to the floor. The gym was powered either by generator or by plugging into the client’s electricity.
Plaintiff alleged that as a result of the trainer’s negligence, she suffered permanent injuries. Those cases were settled.
Plaintiff also sued her UM carrier, contending that the mobile gym was an uninsured/underinsured auto under her policy.
The court disagreed. It explained that under the language of the policy, the inquiry was whether the truck was “used as a premises.”
The court observed that the gym was a stationary truck and, while located for use, was like a building or gym in a strip mall. Because the truck was being used as a “premises” when the negligence occurred, the court ruled it could not be an “uninsured auto” under the policy.
TRIAL COURT MUST MAKE SPECIFIC FINDINGS WHEN AWARDING ATTORNEYS’ FEES.
Baird v. Neutze, 44 Fla. L Weekly D2260 (Fla. 5th DCA November 1, 2019):
To compute attorneys’ fees, the trial judge must (1) determine the reasonable number of hours reasonably expended on litigation; (2) determine the reasonable hourly rate for that type of litigation; (3) multiply the result of (1) and (2); and when appropriate, (4) adjust the fee on the basis of the nature of the litigation or the representation. This case has no facts but does remind us of this important formula.
ERROR TO DISMISS COMPLAINT BASED ON CONCLUSION THAT ALL CLAIMS WERE TIME-BARRED, WHEN INFERENCES DRAWN IN FAVOR OF THE PLAINTIFF FROM THE COMPLAINT DID NOT CONCLUSIVELY SHOW THAT THEY WERE.
Barley v. Ward, 44 Fla. L. Weekly D2669 (Fla. 1st DCA November 1, 2019):
In drawing all of the inferences in favor of the plaintiff and confining review to the four corners of the complaint and the attachments as the court must, the First District concluded that the facts set forth in the complaint did not conclusively show that any of the four counts were barred by their respective statutes of limitations. Instead, those counts raised sufficient factual issues to withstand a motion to dismiss.