Florida’s statutory proposal for settlement (sometimes referred to an offer or demand for judgment) is a valuable litigation tool that shifts exposure to attorneys’ fees and, at least in theory, encourages settlement. The problem for many litigants, however, has been serving a valid proposal for settlement, especially in cases involving multiple plaintiffs or defendants.
This year, the Florida Supreme Court heard two cases involving such “joint” proposals for settlement. The opinions, issued the same day, make clear that where there are multiple plaintiffs or defendants, a statutory proposal for settlement must be apportioned among the parties as set forth by Florida Rule of Civil Procedure 1.442(c)(3)—even if no “logical apportionment can be made.”
In Pratt v. Weiss, 161 So. 3d 1268, 1270 (Fla. 2015), two affiliated hospital entities were sued by a former patient for malpractice. After the jury returned a verdict in favor of the hospital entities, they moved for attorneys’ fees and costs based upon their proposal for settlement. After prevailing in both the trial court and the intermediate appellate court, the Florida Supreme Court reversed the award of attorneys’ fees because the proposal for settlement failed to apportion the amounts attributable to each of the hospital entities. Although the two hospital entities were owned, controlled, and maintained by a single entity, represented by the same lawyer, and treated as a single entity throughout the litigation, the Florida Supreme Court reasoned that the proposal for settlement rule is strictly construed and requires that a joint proposal state the amounts and terms attributable to each offeror, “even where no logical apportionment can be made.”
Similarly, in Audiffred v. Arnold, 161 So. 3d 1274, 1276 (Fla. 2015), Audiffred and her husband, Kimmons, filed an action against Arnold arising from an automobile collision. Audiffred sought damages for her injuries and Kimmons sought damages based upon loss of consortium. During the litigation, Audiffred served Arnold with a proposal for settlement. Although the proposal listed Audiffred as the sole offeror, if accepted, the offer would have resolved all pending claims by both Audiffred and Kimmons.
On appeal, the Florida Supreme Court held that the proposal for settlement was invalid because it failed to expressly delineate what portion of the amount offered (if any) was attributable to Kimmons, the non-offering party. In reaching its decision, the Florida Supreme Court rejected precedent from the Third, Fourth, and Fifth District Courts of Appeal, all of which had previously held that offers by one party to another that disposed of claims by a non-offeror were not “joint offers” and therefore were not subject to apportionment.
These recent cases not only highlight the importance of apportioning joint offers, but should serve as a reminder that parties must strictly adhere to the requirements of Rule 1.442 and the corollary Florida Statute, Section 768.79, in order to be eligible for an award of attorney’s fees and costs.