ALLSTATE INSURANCE CO v. NEVILLE (1997)

District Court of Appeal of Florida,Fifth District.

ALLSTATE INSURANCE CO., Appellant, v. Sandra Garrison NEVILLE, Appellee.

No. 96–1495.

Decided: February 07, 1997

Wallace W. Tudhope of Jack, Wyatt, Tolbert & Thompson, P.A., Maitland, for Appellant. Glenn Klausman of Jacobs & Goodman, P.A., Altamonte Springs, for Appellee.

This is an appeal from a judgment awarding attorney fees in a personal injury action.

Section 45.061(2), Florida Statutes (1989) provides:

(2) If, upon a motion by the offeror within 30 days after the entry of judgment, the court determines that an offer was rejected unreasonably, resulting in unnecessary delay and needless increase in the cost of litigation, it may impose an appropriate sanction upon the offeree. In making this determination the court shall consider all of the relevant circumstances at the time of the rejection․

An offer shall be presumed to have been unreasonably rejected by a defendant if the judgment entered is at least 25 percent greater than the offer rejected․

While appellee is correct that the final settlement reached between the parties was more than 25% greater than her original offer to settle, she is not entitled to a fee because the case was settled, never went to trial and a judgment was never entered. The entry of a judgment at least 25% greater than an offer to settle made by the plaintiff is a prerequisite to the entitlement to attorney fees. The fee judgment is reversed.

REVERSED.

DAUKSCH, Judge.

HARRIS and THOMPSON, JJ., concur.

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