Declaratory judgment based on a wear and tear/marring exclusion

With Carri S. Leininger, Esq.

Plaintiffs filed an action against Tower Hill consisting of three counts: breach of contract; declaratory judgment based on a wear and tear/marring exclusion in the insurance policy; and declaratory judgment seeking declaration that Tower Hill may not unilaterally determine the Actual Cash Value of the loss.

During litigation, Tower Hill served a Proposal for Settlement to each Plaintiff pursuant to Florida Statute section 768.79, which were rejected. A jury later returned a verdict in favor of Tower Hill. Tower Hill then moved for attorney’s fees based on the proposals for settlement. The trial court determined that Tower Hill was not entitled to fees because Plaintiffs’ Complaint sought both equitable relief and monetary damages.

The Third DCA reversed the trial court ruling holding that the case against Tower Hill, in essence, was an “action for damages,” within the meaning of section 768.79(1), because it was apparent that the true relief sought by the Plaintiffs was monetary damages, rather than equitable relief. As such, Tower Hill’s proposals for settlement were not invalidated by the Plaintiffs’ inclusion of declaratory judgment counts in a cause of action that, in actuality, sought money damages. DiPompeo Construction Corp. v. Kimmel & Associates, Inc., 916 So.2d 17 (Fla. 4th DCA 2005), Nelson v. Marine Group of Palm Beach, Inc., 677 So.2d 998 (Fla. 4th DCA 1996), and Diamond Aircraft Industries, Inc. v. Horowitch, 107 So.3d 362 (Fla. 2013)

The takeaway: a court should look past the procedural vehicle used in a complaint and discern what true relief is sought when determining the validity of a Proposal for Settlement/offer of judgment.