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Filing # 30251179 E-Filed 07/29/2015 04:09:51 PM
IN THE CIRCUIT COURT IN AND FOR
THE 11™ JUDICIAL CIRCUIT IN AND
FOR MIAMI-DADE COUNTY, FLORIDA
LEONOR PEREZ BARRIL
GENERAL JURISDICTION DIVISION
Plaintiff, CASE NO: 13-031784 CA O01
ve.
DOUGLAS SCHROCK &
JESSICA SCHROCK
Defendants.
/
é
RESPONSE IO DEFENDANT'S MOTION FOR ENTITLEMENT
EG _BPTORNEY’S FEES AND COSTS
COMES NOW the Pla: LEONOR PEREZ BAREIL by and through
undersigned counsel and moves this © rt for the entry of an
Order denying Defenda 3 th ; Of Attorney's
Fees and Costs, and states;
1. An award of costes and fees is net an absolute i 12
Court determines the § Propogal lacks good faith. Event
Seve. America, Inc... 3 o.2d 882, 884 Fla 3°? DCA
2006); 673 So.2d 946,948 (Fla 4" DCA
1996) ha amount offered will t be accepted is
indicative of the absence cf good faith. PGE Feiday’s Ine.. wv.
Byorak, 663 S0,2d 606, 613, (Fla. 1995}.
2. in determining whether an offer was made in good faith,
the court must consider whether the offer bears a reasonable
lationship te the amount of ages suffered and arose out of a
realistic assessment of liability. Bagleman ¥. Bagi em.
So.2d 946, 948 (Fla. 4" DCA 1996) “The spirit of the offer of
judgment statute is to encourage litigante to resolve cases early
to avoid incurring substantial amounts of court costs and
3 t f s who fail to
act reasonably
947.
ms of this section, the court may, in its diseretion,
atoan offer was not made in good faith. In such
ow an award of costs and attorney's
the p
determine t
case, the
fee, Pi {a}.
4. ner a minimal settlement offex wae
made im good faith, the trial judge must consider all the
surrounding circumstances when the offer was made. When a court
exercises its discretion to determine the exi ce Or nern-
existence of good faith for purposes of determining whether awardPage 2,
Case No: 13-031784 CA OL
of attorney fees is warvanted under 768.79, the court must
consider whether or not re wag a reasonable foundation for
making the offer and an tent to settle the case, See Segundo
vy. Heid, 20 So.3d 933 - 3d DCA 2009); Downe v. Coastal
Syetema, Inti., 39723 80.28 258 (Pla. 3° DCA 2008); Talbott vy.
american Isuzu Motors, Inc., 934 S0.2@ 643 (Pla.2d DCA 2007};
Event Scvs. America, Inc., v, Raguez 917 So.2d 882, 884 Fla
BCA 2005) A reasonable basis for a i
where “ disputed ©
defendant] had no exposure” ; t be f
&ys., Ime. v, Ache gas Corp., 689 So.2d 2929,
ule authorize an award of fees a
ty who unreasonably rejects a reasonable
offer made in good fa im, 994 So.2d 1239
(Fla. 4 DCA 2008} © Attorney's Title Ine, Fund, Ine v
Gerka. 26 So.3d 64€ (Pla.2010).
The point of the statute is mot to force plaintiffs imte
accepting ynreasonabl e offers fox fear of having to pay
defendan fees should they refuse and ultimately
e
Mone
obtain a lesse th. See Janes v. Wash Depot Holdings,
ine,, 489 oop ad 1336 (S.D. Fla. 2067}, quoting Stouffer Hotel
wv. Yeachers, Ine., 344 F. CUPP
BTA, 875 i. BD. Fla. . As one
than a ca:
attempt to s bur
James, supra at , ing achera Ine. ,
344 F.Su
only where
“the undisputed record strongly indicate that the defendant had
RO exposure in the case, Event Sevs. America, Ine., v. Raguea
917 So.2d 882, 884 Fla 379 DCA 2005) (quoting Peoples 7
ine. v. Acme gas Corp., 689 So.2d 2929, 300 (Fla. 3°! pcA 1997})
S. Thus, under the prevailing standard for determining
ex an offer to settle has been made in good faith, thig
€ {State Farm)
i offer was not made in good faith, since it never had a
Yeas: onable basis to believe that its @ was minimal, and
S not unreasonable. Nor
t indicate that SCHROCK’s (State
Farm) ‘had no exposure or limited exposure im this case, Event
Seve, supra.
The Defendant made a nominal proposal for settlement in the
amount of $4,000.00. From all conversations with defense counsel
liability was really net going to be an issue. This was a rear-
end accident. The main issue was the damages. What should be
noted is that at the time the Proposal for Settlement wasPage 3.
Case No: 13-031784 CA OL
made the Defendant had not even obtained an independent medical
examination. Four Thousand Dollars ($4,000.00) was clearly not
® reasonable amaumt to settle this case considering the serious
injuries sustained by Plaintiff and the large amount of
outstanding medical bills. It is patently obvious that the
amount of the proposal for settlement was not made with the
expectation that Plaintiff would have accepted it and therefore
not made with the intention of se mg the cage, and based on
the aforegoing was clearly not made in good faith.
WHEREFORE, Defendant's Motion for Entitlement to Attorney’s
Fees and Costs should be Denied.
2
if IS HEREBY CERTIFIED that a true and correct copy of this
Lon hag been served upon Lawrence EZ. Margolis, Esq. at
and Marcelo Baens, Esq. at
‘ 2045,
t
thie a4 day of
GREGG A. PESSIN, B.A
3191 Coral Way - 5S)
Miami, Florida 33145
Tel: (305) 476-7767
Pax: (305) 476-5984
€ 1008
Preview
Filing # 30251179 E-Filed 07/29/2015 04:09:51 PM IN THE CIRCUIT COURT IN AND FOR THE 11™ JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA LEONOR PEREZ BARRIL GENERAL JURISDICTION DIVISION Plaintiff, CASE NO: 13-031784 CA O01 ve. DOUGLAS SCHROCK & JESSICA SCHROCK Defendants. / é RESPONSE IO DEFENDANT'S MOTION FOR ENTITLEMENT EG _BPTORNEY’S FEES AND COSTS COMES NOW the Pla: LEONOR PEREZ BAREIL by and through undersigned counsel and moves this © rt for the entry of an Order denying Defenda 3 th ; Of Attorney's Fees and Costs, and states; 1. An award of costes and fees is net an absolute i 12 Court determines the § Propogal lacks good faith. Event Seve. America, Inc... 3 o.2d 882, 884 Fla 3°? DCA 2006); 673 So.2d 946,948 (Fla 4" DCA 1996) ha amount offered will t be accepted is indicative of the absence cf good faith. PGE Feiday’s Ine.. wv. Byorak, 663 S0,2d 606, 613, (Fla. 1995}. 2. in determining whether an offer was made in good faith, the court must consider whether the offer bears a reasonable lationship te the amount of ages suffered and arose out of a realistic assessment of liability. Bagleman ¥. Bagi em. So.2d 946, 948 (Fla. 4" DCA 1996) “The spirit of the offer of judgment statute is to encourage litigante to resolve cases early to avoid incurring substantial amounts of court costs and 3 t f s who fail to act reasonably 947. ms of this section, the court may, in its diseretion, atoan offer was not made in good faith. In such ow an award of costs and attorney's the p determine t case, the fee, Pi {a}. 4. ner a minimal settlement offex wae made im good faith, the trial judge must consider all the surrounding circumstances when the offer was made. When a court exercises its discretion to determine the exi ce Or nern- existence of good faith for purposes of determining whether awardPage 2, Case No: 13-031784 CA OL of attorney fees is warvanted under 768.79, the court must consider whether or not re wag a reasonable foundation for making the offer and an tent to settle the case, See Segundo vy. Heid, 20 So.3d 933 - 3d DCA 2009); Downe v. Coastal Syetema, Inti., 39723 80.28 258 (Pla. 3° DCA 2008); Talbott vy. american Isuzu Motors, Inc., 934 S0.2@ 643 (Pla.2d DCA 2007}; Event Scvs. America, Inc., v, Raguez 917 So.2d 882, 884 Fla BCA 2005) A reasonable basis for a i where “ disputed © defendant] had no exposure” ; t be f &ys., Ime. v, Ache gas Corp., 689 So.2d 2929, ule authorize an award of fees a ty who unreasonably rejects a reasonable offer made in good fa im, 994 So.2d 1239 (Fla. 4 DCA 2008} © Attorney's Title Ine, Fund, Ine v Gerka. 26 So.3d 64€ (Pla.2010). The point of the statute is mot to force plaintiffs imte accepting ynreasonabl e offers fox fear of having to pay defendan fees should they refuse and ultimately e Mone obtain a lesse th. See Janes v. Wash Depot Holdings, ine,, 489 oop ad 1336 (S.D. Fla. 2067}, quoting Stouffer Hotel wv. Yeachers, Ine., 344 F. CUPP BTA, 875 i. BD. Fla. . As one than a ca: attempt to s bur James, supra at , ing achera Ine. , 344 F.Su only where “the undisputed record strongly indicate that the defendant had RO exposure in the case, Event Sevs. America, Ine., v. Raguea 917 So.2d 882, 884 Fla 379 DCA 2005) (quoting Peoples 7 ine. v. Acme gas Corp., 689 So.2d 2929, 300 (Fla. 3°! pcA 1997}) S. Thus, under the prevailing standard for determining ex an offer to settle has been made in good faith, thig € {State Farm) i offer was not made in good faith, since it never had a Yeas: onable basis to believe that its @ was minimal, and S not unreasonable. Nor t indicate that SCHROCK’s (State Farm) ‘had no exposure or limited exposure im this case, Event Seve, supra. The Defendant made a nominal proposal for settlement in the amount of $4,000.00. From all conversations with defense counsel liability was really net going to be an issue. This was a rear- end accident. The main issue was the damages. What should be noted is that at the time the Proposal for Settlement wasPage 3. Case No: 13-031784 CA OL made the Defendant had not even obtained an independent medical examination. Four Thousand Dollars ($4,000.00) was clearly not ® reasonable amaumt to settle this case considering the serious injuries sustained by Plaintiff and the large amount of outstanding medical bills. It is patently obvious that the amount of the proposal for settlement was not made with the expectation that Plaintiff would have accepted it and therefore not made with the intention of se mg the cage, and based on the aforegoing was clearly not made in good faith. WHEREFORE, Defendant's Motion for Entitlement to Attorney’s Fees and Costs should be Denied. 2 if IS HEREBY CERTIFIED that a true and correct copy of this Lon hag been served upon Lawrence EZ. Margolis, Esq. at and Marcelo Baens, Esq. at ‘ 2045, t thie a4 day of GREGG A. PESSIN, B.A 3191 Coral Way - 5S) Miami, Florida 33145 Tel: (305) 476-7767 Pax: (305) 476-5984 € 1008