In a recent decision, the Fifth DCA emphasized how strictly courts construe offers of judgment proposed under Fla Stat. §768.79. In Hilton Hotels Corporation, etc., et al v. Troy Anderson v. Paula Anderson, Case No. 5D13-1722 (Fla. 5th DCA December 19, 2014), the appellate court affirmed the lower court’s decision that dropping a plaintiff shortly before trial rendered an offer of judgment vague, ambiguous and unenforceable.
The underlying facts of Anderson involved a criminal attack on a husband in the parking lot of a hotel in Orlando, Florida that was part of a national hotel chain. The husband filed a multi-count complaint alleging that the national and local owner and operator of the hotel, as well as the independent contractor for security services, were each liable for negligence. The complaint also included the wife’s claim for loss of consortium. Shortly before trial, the wife dropped her claims against all defendants entirely. However, a previously served offer of judgment stated that the plaintiffs agreed to settle “any and all claims asserted” against each defendant. The appellate court affirmed the lower court’s determination that the demand was vague, ambiguous and unenforceable because it was unclear whether the offer was intended to resolve claims of both plaintiffs even after the wife’s claims had been dropped.
In its reasoning, the appellate court cited Sarkis v. Allstate Ins. Co., 863 So. 2d 210, 222 (Fla. 2003) in noting that an award of attorney’s fees under Fla. Stat. §768.79 “must be strictly construed in favor of the one against whom the penalty is imposed and is never to be extended by construction.” Thus, an ambiguous offer of judgment “will be held to be unenforceable.” See Stasio v. McManaway, 936 So. 2d 676, 678 (Fla. 5th DCA 2006).
The court also examined a similar decision, Hibbard ex rel. Carr v. McGraw, 918 So. 2d 967 (Fla. 5th DCA 2005) involving negligence claims arising from a vehicular accident that were amended when the minor plaintiff reached 18 years of age. On the defendants’ motion to amend the pleadings to show the daughter as the sole plaintiff after attaining the age of majority, the trial court ordered that the mother would remain as a party plaintiff as to her parental claim for damages, including compensation for the daughter’s medical bills. Id. at 971-72. Prior to moving for the amendment, defendants submitted an offer of judgment exclusively to the daughter for settlement of all claims against them. Id. The defendants obtained a favorable judgment, and the trial court awarded the defendants their attorneys’ fees. But the Fifth DCA reversed that award, holding that it was unclear whether the offer of judgment was directed only to the daughter’s claims, or whether the offer was intended to address the claims brought by the mother as well. Id. That lack of clarity, as to whom the offer was made, rendered the proposal unenforceable under Fla. Stat. §768.79.
These decisions underscore the importance that litigants and practitioners carefully review pending offers of judgment whenever any modification to the parties is made – even where such modification is effected on the eve of trial.