Kotchman et al v. State Farm Mutual Automobile Insurance Co.
Filing
103
ORDER granting 100 Defendant's Motion to Tax Attorney's Fees and Costs. Within thirty (30) days of this Order, Defendant shall file an affidavit of its attorney's fees and costs, and any other documentation, evidence, and argument needed by the Court to ascertain the amount of reasonable attorney's fees and costs to award. Signed by Magistrate Judge Julie S. Sneed on 6/5/2017. (LBL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TRACY L. KOTCHMAN and RONNIE S.
KOTCHMAN,
Plaintiffs,
v.
Case No: 8:15-cv-2482-T-JSS
STATE FARM MUTUAL AUTOMOBILE
INSURANCE CO.,
Defendant.
___________________________________/
ORDER ON DEFENDANT’S MOTION
TO TAX ATTORNEY’S FEES AND COSTS
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
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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
plaintiff’s 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 DCA 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
1
Sitting in diversity jurisdiction, Section 768.79 of the Florida Statues is applicable as it is the substantive law of
Florida, the forum state. McMahan v. Toto, 256 F.3d 1120, 1132 (11th Cir. 2001) (“It is clear that statutes allowing
for recovery of attorney’s fees are substantive for Erie purposes.”), modified in part by 311 F.3d 1077 (11th Cir. 2002).
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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 Plaintiffs did not respond to the Motion, they have
made no such argument. See Camejo v. Smith, 774 So. 2d 28, 29 (Fla. 2d DCA 2000) (“The burden
is on the offeree to prove the absence of good faith.”).
The amounts recovered by Mrs. Kotchman ($8,200), and Mr. Kotchman ($0), are more
than twenty-five percent less than Defendant’s offers.
As such, Defendant is entitled to
“reasonable costs, including investigative expenses, and attorney’s fees. . . incurred from the date
the offer was served,” which was November 8, 2016. § 768.79(1), (6)(a), Fla. Stat.; e.g., Strait v.
Busch Entm’t Corp., No. 8:05-1864T24MAP, 2007 WL 496605, at *3 (M.D. Fla. Feb. 12, 2007)
(awarding defendant reasonable fees and costs because plaintiff rejected an offer that complied
with the requirements of § 768.79 and plaintiff did not show that the offer was not made in good
faith).
Accordingly, it is ORDERED that Defendant’s Motion to Tax Attorney’s Fees and Costs
(Dkt. 100) is GRANTED. Within thirty (30) days of this Order, Defendant shall file an affidavit
of its attorney’s fees and costs, and any other documentation, evidence, and argument needed by
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the Court to ascertain the amount of reasonable attorney’s fees and costs to award.
DONE and ORDERED in Tampa, Florida, on June 5, 2017.
Copies furnished to:
Counsel of Record
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