In 2007, plaintiff Lou Sink, a disabled man in his 50s, was driving his sport utility vehicle in Melbourne when he was rear-ended by an SUV driven by Andrea Deratany and owned by Todd Deratany.
Sink sued the Deratanys. He alleged that Andrea Deratany was negligent in the operation of her vehicle and that Todd Deratany was vicariously liable for the driver’s actions.
Defense counsel noted this was a three car accident in which Sink struck the vehicle in front of him. Counsel contended that Sink struck the vehicle in front of him first, thereby causing the sequence in which Andrea struck his vehicle.
Sink was taken from the scene via ambulance. He suffered fractured ribs on his right side and a “Chance” fracture of the T8 vertebra with minimal displacement. He also had ligamentous disruption at T8-9. Plaintiff’s counsel contended that Sink was at high risk of paralysis following the accident because of spinal instability caused by the ligament rupture.
Without leaving the hospital, Sink underwent a posterolateral fusion with fixation at T7-8, T8-9 and T9-10 using pedicle screws. He also underwent a decompressive laminectomy and underwent about six months of outpatient physical therapy.
Plaintiff’s counsel noted that the accident took place at 40 mph, which was sufficient force to cause the claimed injuries.
Sink claimed he is in daily and constant pain, and is suffering from a decreased range of motion in his back. He also stated he would need continued physical therapy and heightened medical monitoring.
Sink sought recovery of $186,500 in outstanding medical costs, and between $600,000 and $800,000 in total damages.
Defense counsel argued that Sink’s injuries were worsened by his failure to wear a seat belt. Counsel further contended that Sink’s obesity exacerbated his injuries.
The defense’s expert orthopedist testified that Sink made a good recovery from the surgery and that continued care would not be required.
The jury found the defendants 100 percent liable for the accident and awarded Sink $395,018.77 in damages.
$170,019 Personal Injury: Past Medical Cost
$50,000 Personal Injury: Future Medical Cost
$75,000 Personal Injury: Past Pain And Suffering
$100,000 Personal Injury: Future Pain And Suffering
Defense counsel is seeking to tax fees and costs.
Defense counsel’s motion to tax fees and costs is in all likelihood pursuant to Florida’s Offer in Judgement rule creates a right to recover reasonable
costs and attorney’s fees incurred after a settlement offer is made
when (1) a party has served a demand or offer for judgment, and (2) that
party has recovered at trial a judgment at least twenty-five (25) percent
more or less than the demand or offer. Dictiomatic, Inc. v. United States
Fidelity & Guaranty Company, 127 F.Supp.2d 1239, 1244 (Fla. 1999).
The statute applies to both plaintiff and defendant settlement offers.
See Fla. Stat. ¬ß768.69(1). In order for a party to recover attorney’s
fees and costs, the statute requires that “the offer:
1. Be in writing and state that it is being made pursuant to this
2. Name the party making it and the party to whom it is being made;
3. State with particularity the amount offered to settle a claim for
punitive damages, if any; and
4. State its total amount.” See Fla. Stat. ¬ß768.79(2).
The purpose of this statute is to terminate all claims, end disputes,
and eliminate the need for further intervention by the court by encouraging
all parties to reach a settlement. Dictiomatic, 127 F.Supp.2d at 1244.
This statute will apply to any civil action for damages. Beyel Bros.
Cran and Rigging Co. of South Florida, Inc. v. Ace Transp., Inc., 664
So.2d 62 (Fla. 4th DCA 1995). However, the courts have held that because
the statute is punitive in nature, the statute must be strictly construed.
Schussel v. Ladd Hairdressers, Inc., 736 So.2d 776 (Fla. 4th DCA 1999).
The offer need not contain a certificate of service or have been otherwise
verified to support recovery under the statute when the offeror’s
attorney files notice of service of the offer. Bailey v. Chambelee, 697
So.2d 972 (Fla. 2d DCA 1997). Further, the actual written offer need not
be filed unless it is accepted. See Fla. Stat. ¬ß768.79.
Procedurally speaking, once a court enters a final judgment, a party seeking to recover costs and attorney’s fees under the offer of judgment
statute must make a demand by motion within 30 days to allow recovery.
Tampa Letter Carriers, Inc. v. Mack, 649 So.2d 890 (Fla. 2d DCA 1995).
Once a party establishes that he/she has complied with the statutory requirements, a trial court determines whether to award the costs and attorney’s fees. Camejo v. Smith, 774 So.2d 28 (Fla. 2d DCA 2000).
The only basis for a court’s refusal to award costs and attorney’s
fees at this point is if the court finds that the settlement offer was
made in bad faith. Fla. Stat. ¬ß768.79. Whether or not the offer was
made in bad faith is a matter of discretion for the trial judge and is
to be determined from the facts and circumstances surrounding the offer.
Fox, 745 So.2d 330. However, the determination of whether an offer of
judgment was served in good faith turns entirely on whether the offeror
had a reasonable foundation upon which to make the offer. Disney v. Vaughen, 804 So.2d 581 (Fla. 5th DCA 2002). The courts have held that a nominal offer of settlement will only be suspect where it is not based on any assessment of liability and damages. Fox v. McCaw Cellular Communications of Florida, Inc., 745 So.2d 330 (Fla. 4th DCA 1998). A mere belief that the figure will not be accepted does not necessarily suggest an absence of good faith. Levine v. Harris, 791 So.2d 1175 (Fla. 4th DCA 2001). Because establishing that an offer of judgment was made in bad faith requires such a high burden of proof, few courts refuse to award attorney’s fees and costs because of bad faith.
If there is to be an award of attorney’s fees and costs, the court
will determine the reasonableness of the award pursuant to the Florida
Statute ¬ß768.79. Fla. Stat. ¬ß768.79(7)(b). The statute lists
several factors the court must consider:
1. The then apparent merit or lack of merit in the claim;
2. The number and nature of offers made by the parties;
3. The closeness of questions of fact and law at issue;
4. Whether the person making the offer had unreasonably refused to furnish information necessary to evaluate the reasonableness of such offer;
5. Whether the suit was in the nature of a test case presenting questions
of far-reaching importance affecting nonparties; and
6. The amount of the additional delay cost and expense that the person
making the offer reasonably would be expected to incur if the litigation
be prolonged. Fla. Stat. ¬ß768.79(7)(b).
If you have been involved in Florida car accident, you may be entitled to file a claim or lawsuit against the negligent at-fault driver or party seeking compensation for your damages. Call the Law Offices of David I. Fuchs at 954-568-3636 for a free, immediate, and no-obligation consultation as to your legal rights. /practice-areas/rear-end-collisions/