United States District Court, M.D. Florida, Tampa Division
TRACY L. KOTCHMAN and RONNIE S. KOTCHMAN, Plaintiffs,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Defendant.
ORDER ON DEFENDANT'S MOTION TO TAX ATTORNEY'S
FEES AND COSTS
JULIE
S. SNEED UNTIED STATES MAGISTRATE JUDGE
THIS
MATTER is before the Court on Defendant's Motion to Tax
Attorney's Fees and Costs ("Motion"). (Dkt.
100.) In the Motion, Defendant seeks an order finding its
entitlement to attorney's fees and costs pursuant to
Section 768.79 of the Florida Statutes, the Florida offer of
judgment statute. Plaintiffs have not filed a response to the
Motion despite the Court's order, sua sponte, granting
them an extension to do so. (Dkt. 102.) Accordingly, the
Motion is deemed unopposed. (Id.) For the reasons
that follow, the Motion is granted.
BACKGROUND
This
matter arises from a car accident that occurred on October 5,
2011, between Plaintiff Tracy Kotchman and non-party Rachel
Price. (Dkt. 2.) Plaintiffs sued Defendant, their car
insurer. (Dkt. 2.) In their Complaint, Mrs. Kotchman alleged
she suffered personal injuries, and Plaintiff Ronnie
Kotchman, Mrs. Kotchman's husband, alleged he suffered
loss of consortium, as a result of the car accident. (Dkt.
2.)
On
November 8, 2016, Defendant served a proposal for settlement
on Mrs. Kotchman for $49, 900 and a proposal for settlement
on Mr. Kotchman for $100. (Dkts. 31, 32, 100-1.) Neither
proposal for settlement was accepted. (Dkt. 100 ¶ 3.)
Plaintiffs'
claims were tried during the week of March 27, 2017, before
the undersigned. (Dkts. 86, 88, 91, 92.) The jury returned a
verdict finding that Ms. Price was the legal cause of Mrs.
Kotchman's loss, injury, or damage, and awarded her $8,
200 as damages for her past medical expenses. (Dkt. 94.) The
jury found that Mrs. Kotchman did not suffer a permanent
injury. (Id.) Therefore, the jury did not reach the
following questions: (1) the amount of Mrs. Kotchman's
damages for pain and suffering, disability, physical
impairment, mental anguish, inconvenience, aggravation of a
disease or physical defect, and loss of capacity for the
enjoyment of life sustained in the past and to be sustained
in the future; or (2) the amount of Mr. Kotchman's
damages for loss of Mrs. Kotchman's comfort, society, and
attention. (Id.) The jury did not award Mr. Kotchman
any damages. (Id.)
Judgment
was entered in Mrs. Kotchman's favor as to the first
count of the Complaint in the amount of $8, 200, and in
Defendant's favor as to the second count of the
Complaint. (Dkt. 99.)
ANALYSIS
In the
Motion, Defendant argues that it is entitled to its
reasonable attorney's fees and costs pursuant to Section
768.79 of the Florida Statutes and Florida Rule of Civil
Procedure 1.442, which govern offers of judgment. (Dkt. 100.)
Specifically, Defendant contends that because the judgments
obtained by Plaintiffs are at least twenty-five percent less
than Defendant's offers to them, it is entitled to its
reasonable attorney's fees and costs pursuant to Section
768.79. (Dkt. 48 at 2.) Therefore, Defendant requests an
order finding its entitlement to its reasonable
attorney's fees and costs and states that it will provide
supplemental filings regarding the amounts of its reasonable
attorney's fees and costs. (Dkt. 100 ¶ 16.)
Section
768.79 of the Florida Statutes provides as follows:
In any civil action for damages filed in the courts of this
state, 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 by her or him . . . 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.
Where such costs and attorney's fees total more than the
judgment, the court shall enter judgment for the defendant
against the plaintiff for the amount of the costs and fees,
less the amount of the plaintiffs award.
§ 768.79, Fla. Stat. (2016).[1] Section 768.79 is in Part II
of Chapter 768, Florida Statutes, which "applies to any
action for damages, whether in tort or in contract."
Id. § 768.71(1); Winter Park Imports, Inc.
etc. v. JM Family Enterprises, 66 So.3d 336, 338 (Fla.
5th DC A 2011) (explaining that "[t]he statute applies
to 'any civil action for damages'").
A party
is entitled to attorney's fees under Section 768.79
"when the two preceding prerequisites have been
fulfilled: i.e., (1) when a party has served a demand or
offer for judgment, and (2) that party has recovered a
judgment at least 25 percent more or less than the demand or
offer." TGI Friday's, Inc. v. Dvorak, 663
So.2d 606, 611 (Fla. 1995), approving Schmidt v.
Fortner, 629 So.2d 1036, 1040 (Fla. 4th DCA 1993). The
court may disallow an award of attorney's fees only if
the court determines that the offer was not made in good
faith. Id. at 612.
Here,
on November 8, 2016, Defendant served proposals for
settlement pursuant to Section 768.79, offering Mrs. Kotchman
$49, 900 and Mr. Kotchman $100 to resolve all damages that
would otherwise be awarded in a final judgment in their
favor. (Dkt. 100-1.) Defendant's proposals for settlement
contained the content required by Section 768.79(2) and
Florida Rule of Civil Procedure 1.442(c). See Diamond
Aircraft Indus., Inc. v. Horowitch,107 So.3d 362, 376
(Fla. 2013) (emphasis in original) (explaining that because
"[b]oth section 768.79 and rule 1.442 are in derogation
of the common law rule that each party is responsible for its
own attorney's fees ... we strictly construe both the
statute and the rule"). There is no evidence
that the proposals for settlement were not made in good
faith, and, as ...