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Markovits v. State Farm Mutual Automobile Insurance Co.

Florida Court of Appeals, First District

January 3, 2018

Dianya Markovits, Appellant,
v.
State Farm Mutual Automobile Insurance Company, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Alachua County. Monica J. Brasington, Judge.

          Julie A. Fine and Cherie H. Fine of Fine, Farkash & Parlapiano, P.A., Gainesville, for Appellant.

          Susan M. Seigle of Alvarez, Winthrop, Thompson and Storey, P.A., Gainesville, for Appellee.

          Bilbrey, J.

         Appellant, Dianya Markovits, was injured in an automobile crash and brought suit against Appellee, State Farm Mutual Automobile Insurance Company, for uninsured motorist benefits under her insurance policy. She served a proposal for settlement on State Farm which was not accepted.[1] After trial, Markovits obtained a final judgment in her favor which was more than 25 percent greater than the amount demanded in the proposal for settlement, and she then moved for attorneys' and paralegals' fees based on the rejected proposal.[2] See § 768.79(1), Fla. Stat. (2014). State Farm disputed her entitlement to fees contending that the proposal was served prematurely. See Fla. R. Civ. P. 1.442(b). The trial court agreed with State Farm and held that Markovits was not entitled to an award of fees. Based on our case law which establishes that service on an insurer is perfected when the Chief Financial Officer of the State of Florida (CFO) is served as an insurer's "attorney to receive service of all legal process issued against it in any civil action or proceeding in this state, " we hold that the proposal was not premature, and that Markovits is entitled to reasonable attorneys' and paralegals' fees. § 624.422(1), Fla. Stat. (2014). We therefore reverse and remand for a hearing to determine the amount of fees to be awarded to Markovits.

         As required by law, the complaint was served on the CFO. See §§ 48.151, 624.422, 624.423, Fla. Stat. (2014). The CFO was served on February 4, 2014, and his office forwarded the complaint to State Farm on February 7, 2014. See § 624.423(1), Fla. Stat. On May 6, 2014, Markovits served the proposal for settlement on State Farm. Rule 1.442(b), Florida Rules of Civil Procedure, states in part that a "proposal to a defendant shall be served no earlier than 90 days after service of process on that defendant." State Farm was served with the proposal 91 days after service of the complaint on the CFO but 88 days after the complaint was forwarded by the CFO to State Farm. Markovits argues that service was perfected when the CFO was served, and therefore the proposal complied with rule 1.442(b).[3] State Farm argues that service was not perfected until the CFO forwarded the complaint to State Farm, and therefore the proposal was premature and invalid. Both parties cite certain statutory language in support of their positions.

         Markovits points to section 624.422, which states,

(1) Each licensed insurer, whether domestic, foreign, or alien, shall be deemed to have appointed the Chief Financial Officer and her or his successors in office as its attorney to receive service of all legal process issued against it in any civil action or proceeding in this state; and process so served shall be valid and binding upon the insurer.

(Emphasis added).

While State Farm points to section 624.423, which states,
(3) Process served upon the Chief Financial Officer and copy thereof forwarded as in this section provided shall for all purposes constitute valid and binding service thereof upon the insurer.

(Emphasis added).

         In Centex-Rodgers Construction Company v. Hensel Phelps Construction Company, 591 So.2d 1117, 1117 (Fla. 1st DCA 1992), we discussed "whether service on a foreign corporation and its surety is perfected through service on the Insurance Commissioner's office, as agent of the surety." At the time, the Insurance Commissioner was the statutory agent under sections 48.151, 624.422, and 624.423, but the statutes were otherwise almost identical to the 2014 versions. Although Centex-Rodgers involved the question of ...


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