Third District Court of Appeal State of Florida
Opinion filed December 06, 2017. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D17-666 Lower Tribunal Nos. 15-17 & 05-10682 ________________
United Automobile Insurance Company, Petitioner,
vs.
Partners in Health Chiropractic Center, a/a/o Cecilia Yanique Gerlin, Respondent.
On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade County, Appellate Division, Jason Bloch, Charles Johnson, and Stephen Millan, Judges.
Michael J. Neimand, for petitioner.
Law Offices of Marlene S. Reiss, Esq., P.A., and Marlene S. Reiss, for respondent.
Before ROTHENBERG, C.J., and FERNANDEZ and LUCK, JJ.
ROTHENBERG, C.J. United Automobile Insurance Company (“United Auto”) seeks second-tier
certiorari review of a circuit court appellate decision affirming the county court’s
order denying United Auto’s motion for entitlement to attorney’s fees filed
pursuant to section 768.79, Florida Statutes (2013), and Florida Rule of Civil
Procedure 1.442, following the plaintiff’s, Partners in Health Chiropractic Center
(“Partners in Health”), failure to accept United Auto’s nominal proposal for
settlement. Because there is no showing that the circuit court, sitting in its
appellate capacity, failed to afford United Auto procedural due process in the
appeal or failed to apply the correct law resulting in a miscarriage of justice, we
dismiss the petition. See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d
1086, 1092 (Fla. 2010).
FACTS
Cecilia Yanique Gerlin (“Gerlin”) was treated by Partners in Health in 2003,
and thereafter, she assigned her rights to PIP benefits under her automobile
insurance policy issued by United Auto to Partners in Health. Partners in Health
submitted bills for Gerlin’s treatment to United Auto. After United Auto denied
the claim, Partners in Health filed suit against United Auto in the Miami-Dade
county court, asserting a claim for breach of contract for failing to pay the PIP
benefits due under Gerlin’s policy with United Auto. United Auto answered the
complaint and denied that the treatment was reasonable, related to the automobile
2 accident Gerlin was involved in on June 19, 2003, or necessary.
While the case was pending, United Auto submitted a nominal proposal for
settlement to Partners in Health, which did not accept the offer. The case
proceeded to trial in county court, and after the jury found that Partners in Health’s
services to Gerlin were not related to the June 19, 2003 accident, United Auto filed
a motion seeking an order finding that it was entitled to its attorney’s fees pursuant
to section 768.79 and rule 1.442. Partners in Health opposed United Auto’s
motion arguing that the proposal for settlement was not made in good faith.
The county court conducted a hearing to determine whether United Auto’s
nominal proposal for settlement prior to trial was a good faith offer. After
conducting the hearing, the county court entered an order denying United Auto’s
motion for entitlement to attorney’s fees based on the following four findings: (1)
the extensive and protracted length of the litigation; (2) the prior rulings in favor of
Partners in Health (during litigation a final judgment was initially issued in favor
of Partners in Health, and Partners in Health was also awarded its fees and costs,
but those judgments were reversed on appeal prior to United Auto making its
proposal for settlement); (3) United Auto had no reasonable expectation that its
offer would be accepted; and (4) the record before the county court at the time of
the entitlement hearing failed to show that United Auto had no exposure in the case
when it made its proposal for settlement.
3 United Auto appealed the denial of its motion for entitlement to attorney’s
fees to the circuit court, sitting in its appellate capacity. The circuit court appellate
panel issued a detailed opinion rejecting the first three grounds cited by the county
court for denying United Auto’s motion for entitlement to attorney’s fees, but
affirmed the order on appeal nevertheless, based on the circuit court’s standard of
review (abuse of discretion) and the absence of the trial transcript and certain
medical records. Because we conclude that the circuit court appellate panel
applied the correct law and nothing in the record indicates that United Auto was
not afforded due process, we dismiss the instant petition for lack of jurisdiction.
ANALYSIS
First, we note that the circuit court appellate panel correctly reviewed the
county court’s findings and order under the abuse of discretion standard of review.
See State Farm Fla. Ins. Co. v. Laughlin-Alfonso, 118 So. 3d 314, 315 (Fla. 3d
DCA 2013) (holding that the abuse of discretion standard of review governs
review of the trial court’s determination that a proposal for settlement was not
made in good faith).
Second, the circuit court appellate panel also applied the correct law when it
rejected the first three grounds relied on by the county court. The fact that the
litigation may have been protracted, resulting in extensive expenditure of
resources, is not a valid basis for finding that a nominal proposal for settlement is a
4 bad-faith offer. The issue is whether the defendant had a reasonable basis on
which to make its offer. Peoples Gas Sys., Inc. v. Acme Gas Corp., 689 So. 2d
300, 300 (Fla. 3d DCA 1997) (stating that “[t]he obligation of good faith . . .
merely insists that the offeror have some reasonable foundation on which to base
an offer”) (quotation omitted). The fact that Partners in Health may have obtained
favorable rulings by the county court earlier in the litigation is also of no import in
this case because those rulings were reversed on appeal prior to United Auto’s
proposal for settlement. Additionally, whether United Auto reasonably expected
Partners in Health to accept its offer is irrelevant. The relevant consideration is
whether United Auto fully intended to settle the case when it made its offer.
Peoples Gas, 689 So. 2d at 300-301 (stating that “the fact that Metrogas and Siegel
Gas may have believed that Peoples Gas would reject their nominal offers is not
determinative of the issue of good faith”) (citing Schmidt v. Fortner, 629 So. 2d
1036, 1040 n.5 (Fla. 4th DCA 1993). In Schmidt, the Fourth District Court of
Appeal held:
A mere belief that the figure offered or demanded will not be accepted, on the other hand, does not necessarily suggest to us either the absence of good faith or the presence of bad faith-at least where the offeror fully intends to conclude a settlement if the offer or demand is accepted as made, and the amount of the offer or demand is not so widely inconsistent with the known facts of the case as to suggest on its face the sole purpose of creating a right to fees if it is not accepted.
Schmidt, 629 So. 2d at 1040 n.5.
5 Third, the circuit court appellate panel also applied the correct law when it
relied on the long-standing principle that where factual issues exist as to whether
the trial court abused its discretion in reaching its conclusion, and the question on
appeal is whether its findings were supported by the record, the appellant must
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Third District Court of Appeal State of Florida
Opinion filed December 06, 2017. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D17-666 Lower Tribunal Nos. 15-17 & 05-10682 ________________
United Automobile Insurance Company, Petitioner,
vs.
Partners in Health Chiropractic Center, a/a/o Cecilia Yanique Gerlin, Respondent.
On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade County, Appellate Division, Jason Bloch, Charles Johnson, and Stephen Millan, Judges.
Michael J. Neimand, for petitioner.
Law Offices of Marlene S. Reiss, Esq., P.A., and Marlene S. Reiss, for respondent.
Before ROTHENBERG, C.J., and FERNANDEZ and LUCK, JJ.
ROTHENBERG, C.J. United Automobile Insurance Company (“United Auto”) seeks second-tier
certiorari review of a circuit court appellate decision affirming the county court’s
order denying United Auto’s motion for entitlement to attorney’s fees filed
pursuant to section 768.79, Florida Statutes (2013), and Florida Rule of Civil
Procedure 1.442, following the plaintiff’s, Partners in Health Chiropractic Center
(“Partners in Health”), failure to accept United Auto’s nominal proposal for
settlement. Because there is no showing that the circuit court, sitting in its
appellate capacity, failed to afford United Auto procedural due process in the
appeal or failed to apply the correct law resulting in a miscarriage of justice, we
dismiss the petition. See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d
1086, 1092 (Fla. 2010).
FACTS
Cecilia Yanique Gerlin (“Gerlin”) was treated by Partners in Health in 2003,
and thereafter, she assigned her rights to PIP benefits under her automobile
insurance policy issued by United Auto to Partners in Health. Partners in Health
submitted bills for Gerlin’s treatment to United Auto. After United Auto denied
the claim, Partners in Health filed suit against United Auto in the Miami-Dade
county court, asserting a claim for breach of contract for failing to pay the PIP
benefits due under Gerlin’s policy with United Auto. United Auto answered the
complaint and denied that the treatment was reasonable, related to the automobile
2 accident Gerlin was involved in on June 19, 2003, or necessary.
While the case was pending, United Auto submitted a nominal proposal for
settlement to Partners in Health, which did not accept the offer. The case
proceeded to trial in county court, and after the jury found that Partners in Health’s
services to Gerlin were not related to the June 19, 2003 accident, United Auto filed
a motion seeking an order finding that it was entitled to its attorney’s fees pursuant
to section 768.79 and rule 1.442. Partners in Health opposed United Auto’s
motion arguing that the proposal for settlement was not made in good faith.
The county court conducted a hearing to determine whether United Auto’s
nominal proposal for settlement prior to trial was a good faith offer. After
conducting the hearing, the county court entered an order denying United Auto’s
motion for entitlement to attorney’s fees based on the following four findings: (1)
the extensive and protracted length of the litigation; (2) the prior rulings in favor of
Partners in Health (during litigation a final judgment was initially issued in favor
of Partners in Health, and Partners in Health was also awarded its fees and costs,
but those judgments were reversed on appeal prior to United Auto making its
proposal for settlement); (3) United Auto had no reasonable expectation that its
offer would be accepted; and (4) the record before the county court at the time of
the entitlement hearing failed to show that United Auto had no exposure in the case
when it made its proposal for settlement.
3 United Auto appealed the denial of its motion for entitlement to attorney’s
fees to the circuit court, sitting in its appellate capacity. The circuit court appellate
panel issued a detailed opinion rejecting the first three grounds cited by the county
court for denying United Auto’s motion for entitlement to attorney’s fees, but
affirmed the order on appeal nevertheless, based on the circuit court’s standard of
review (abuse of discretion) and the absence of the trial transcript and certain
medical records. Because we conclude that the circuit court appellate panel
applied the correct law and nothing in the record indicates that United Auto was
not afforded due process, we dismiss the instant petition for lack of jurisdiction.
ANALYSIS
First, we note that the circuit court appellate panel correctly reviewed the
county court’s findings and order under the abuse of discretion standard of review.
See State Farm Fla. Ins. Co. v. Laughlin-Alfonso, 118 So. 3d 314, 315 (Fla. 3d
DCA 2013) (holding that the abuse of discretion standard of review governs
review of the trial court’s determination that a proposal for settlement was not
made in good faith).
Second, the circuit court appellate panel also applied the correct law when it
rejected the first three grounds relied on by the county court. The fact that the
litigation may have been protracted, resulting in extensive expenditure of
resources, is not a valid basis for finding that a nominal proposal for settlement is a
4 bad-faith offer. The issue is whether the defendant had a reasonable basis on
which to make its offer. Peoples Gas Sys., Inc. v. Acme Gas Corp., 689 So. 2d
300, 300 (Fla. 3d DCA 1997) (stating that “[t]he obligation of good faith . . .
merely insists that the offeror have some reasonable foundation on which to base
an offer”) (quotation omitted). The fact that Partners in Health may have obtained
favorable rulings by the county court earlier in the litigation is also of no import in
this case because those rulings were reversed on appeal prior to United Auto’s
proposal for settlement. Additionally, whether United Auto reasonably expected
Partners in Health to accept its offer is irrelevant. The relevant consideration is
whether United Auto fully intended to settle the case when it made its offer.
Peoples Gas, 689 So. 2d at 300-301 (stating that “the fact that Metrogas and Siegel
Gas may have believed that Peoples Gas would reject their nominal offers is not
determinative of the issue of good faith”) (citing Schmidt v. Fortner, 629 So. 2d
1036, 1040 n.5 (Fla. 4th DCA 1993). In Schmidt, the Fourth District Court of
Appeal held:
A mere belief that the figure offered or demanded will not be accepted, on the other hand, does not necessarily suggest to us either the absence of good faith or the presence of bad faith-at least where the offeror fully intends to conclude a settlement if the offer or demand is accepted as made, and the amount of the offer or demand is not so widely inconsistent with the known facts of the case as to suggest on its face the sole purpose of creating a right to fees if it is not accepted.
Schmidt, 629 So. 2d at 1040 n.5.
5 Third, the circuit court appellate panel also applied the correct law when it
relied on the long-standing principle that where factual issues exist as to whether
the trial court abused its discretion in reaching its conclusion, and the question on
appeal is whether its findings were supported by the record, the appellant must
provide the reviewing court with an adequate record on appeal. See Applegate v.
Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979). Although this Court
might not necessarily agree with the circuit court appellate panel’s determination
as to whether the record before it was adequate, this Court is not free to reweigh
the adequacy of the record or the sufficiency of the evidence on second-tier
certiorari review. See Far Niente, LLC v. City of Key West, 209 So. 3d 43, 46
(Fla. 3d DCA 2016) (holding that “review is to become narrower, not broader, as
the case moves to higher levels of appellate review”; “[t]he issues presented for
review are not to be reinvestigated, tried, and determined upon the merits
generally”; and only “grievous errors” are subject to second-tier certiorari review)
(citing Custer, 62 So. 3d at 1092) (full citation, internal quotation, and emphasis
omitted).
The final reason provided by the county court for rejecting United Auto’s
motion for entitlement to attorney’s fees based on its proposal for settlement was
that “the record before the Court at the time of the entitlement hearing failed to
show that United Auto had no exposure in the case at the time the Proposal” was
6 made. We conclude that the circuit court appellate panel correctly determined that
this finding by the county court was also an incorrect application of the law.
United Auto was not required to show that it had no exposure in the case at the
time the proposal for settlement was made—it was only required to demonstrate
that at the time of its offer, it possessed a reasonable basis to conclude that its
exposure was nominal. See Isaias v. H.T. Hackney Co., 159 So. 3d 1002, 1004-05
(Fla. 3d DCA 2015); Laughlin-Alfonso, 118 So. 3d at 315 (“To determine whether
State Farm’s settlement offer was justified, we consider whether the record
demonstrates conclusively that, at the time [the offer] was made, [State Farm] . . .
had a reasonable basis . . . to conclude that [its] exposure was nominal.”) (internal
citations omitted) (alterations in original); Event Servs. Am., Inc. v. Ragusa, 917
So. 2d 882, 884 (Fla. 3d DCA 2005) (holding that a nominal offer should be
stricken unless the offeror had a reasonable basis to conclude that its exposure was
nominal).
In applying the correct standard on appellate review, the circuit court
appellate panel noted that the determination of good faith regarding the offeror’s
reasonable assessment of its exposure is a fact-intensive inquiry made on a case by
case basis. See Fox v. McCaw Cellular Commc’ns of Fla., Inc., 745 So. 2d 330,
333 (Fla. 4th DCA 1998) (“Whether an offer was made in bad faith involves a
matter of discretion reposed in the trial judge to be determined from the facts and
7 circumstances surrounding the offer.”). When attempting to determine whether the
county court abused its discretion after considering the facts and circumstances, the
circuit court appellate panel noted that United Auto was relying on the testimony
of Dr. Merrit, who conducted a peer review, and medical records purporting to
show that Gerlin’s injuries were work related, and thus, not related to the subject
automobile accident. However, the circuit court appellate panel noted that Dr.
Merrit’s peer review report was “ambiguous,” thus requiring review of his trial
testimony. However, the trial transcript and the medical records allegedly
reflecting that Gerlin’s injuries were not related to the automobile accident were
not included in the record on appeal.
Thus, the circuit court appellate panel concluded that there was an
insufficient record upon which it could evaluate the county court’s resolution of
the factual issues and, in reliance upon Applegate, affirmed the order denying
United Auto’s motion for entitlement to attorney’s fees pursuant to its proposal for
settlement. Because the circuit court appellate panel has applied the correct law
and the record does not demonstrate that United Auto was not afforded due
process, we dismiss the petition for lack of jurisdiction.
Petition dismissed.