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Fla. L. Weekly S500aTop of Form
Fla. L. Weekly S500aTop of Form
Attorney’s
fees — Civil procedure — Proposal of settlement — Ambiguity in proposal —
Where plaintiff proposed settlements with defendants, and plaintiff’s wife made
separate offers to defendants for loss of consortium but voluntarily dismissed
her cause of action prior to trial, plaintiff’s offers of settlement were
sufficiently free of ambiguity to entitle the offeror to attorney’s fees after
obtaining favorable judgment — No merit to claim that plaintiff’s offer was
ambiguous because if could have affected the unaddressed claims of the
plaintiff’s wife, because the plaintiff’s proposals were not joint proposals,
made no reference to his wife’s claims, and were sufficient to allow each
defendant to make an informed decision about settling — Where plaintiff
proposed individual settlements with defendants who were represented by a
single firm at trial and, for clarity and convenience, were referred to at
trial by a single name, it was improper for the trial court to deny attorney’s
fees on grounds that the unapportioned final judgment against the defendants
was not more than 25% more than the aggregated sum of the individual settlement
offers — Plaintiff is entitled to fees based on the fact that the final
judgment exceeded each of the individual proposed settlement amounts by more
than the statutorily required 25% — Appellate court’s concern with plaintiff’s
failure to request an assignment of fault among various defendants is misplaced
— Trial court’s not specifying that defendants were jointly and severally
liable to plaintiff did not destroy his entitlement to attorney’s fees, nor did
plaintiff waive this right by agreeing with the defendants’ proposal to be
referred to collectively by a single name
fees — Civil procedure — Proposal of settlement — Ambiguity in proposal —
Where plaintiff proposed settlements with defendants, and plaintiff’s wife made
separate offers to defendants for loss of consortium but voluntarily dismissed
her cause of action prior to trial, plaintiff’s offers of settlement were
sufficiently free of ambiguity to entitle the offeror to attorney’s fees after
obtaining favorable judgment — No merit to claim that plaintiff’s offer was
ambiguous because if could have affected the unaddressed claims of the
plaintiff’s wife, because the plaintiff’s proposals were not joint proposals,
made no reference to his wife’s claims, and were sufficient to allow each
defendant to make an informed decision about settling — Where plaintiff
proposed individual settlements with defendants who were represented by a
single firm at trial and, for clarity and convenience, were referred to at
trial by a single name, it was improper for the trial court to deny attorney’s
fees on grounds that the unapportioned final judgment against the defendants
was not more than 25% more than the aggregated sum of the individual settlement
offers — Plaintiff is entitled to fees based on the fact that the final
judgment exceeded each of the individual proposed settlement amounts by more
than the statutorily required 25% — Appellate court’s concern with plaintiff’s
failure to request an assignment of fault among various defendants is misplaced
— Trial court’s not specifying that defendants were jointly and severally
liable to plaintiff did not destroy his entitlement to attorney’s fees, nor did
plaintiff waive this right by agreeing with the defendants’ proposal to be
referred to collectively by a single name
TROY
ANDERSON, Petitioner, vs. HILTON HOTELS CORPORATION, etc., et al. Respondents.
Supreme Court of Florida. Case No. SC15-124. November 3, 2016. Application for
Review of the Decision of the District Court of Appeal — Direct Conflict of
Decisions. Fifth District – Case Nos. 5D13-2552 & 5D13-2553 (Orange
County). Counsel: Barbara A. Eagan of Eagan Appellate Law, PLLC, Orlando;
Thomas D. Hall and John S. Mills of The Mills Firm, P.A., Tallahassee; W. Riley
Allen of Riley Allen Law, Orlando; Simon L. Wiseman of The Wiseman Law Firm,
P.A., Orlando; and Margaret E. Kozan of Margaret E. Kozan, P.A., Winter Park,
for Petitioner. Pamela A. Chamberlin of Mitrani, Rynor, Adamsky & Toland,
P.A., Miami Beach; and Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy &
Ford, P.A., Orlando, for Respondent.
ANDERSON, Petitioner, vs. HILTON HOTELS CORPORATION, etc., et al. Respondents.
Supreme Court of Florida. Case No. SC15-124. November 3, 2016. Application for
Review of the Decision of the District Court of Appeal — Direct Conflict of
Decisions. Fifth District – Case Nos. 5D13-2552 & 5D13-2553 (Orange
County). Counsel: Barbara A. Eagan of Eagan Appellate Law, PLLC, Orlando;
Thomas D. Hall and John S. Mills of The Mills Firm, P.A., Tallahassee; W. Riley
Allen of Riley Allen Law, Orlando; Simon L. Wiseman of The Wiseman Law Firm,
P.A., Orlando; and Margaret E. Kozan of Margaret E. Kozan, P.A., Winter Park,
for Petitioner. Pamela A. Chamberlin of Mitrani, Rynor, Adamsky & Toland,
P.A., Miami Beach; and Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy &
Ford, P.A., Orlando, for Respondent.
(LEWIS,
J.) Petitioner Troy Anderson seeks review of the decision of the Fifth District
Court of Appeal in Hilton Hotels Corp. v. Anderson, 153 So. 3d 412 (Fla.
5th DCA 2014), on the ground that it expressly and directly conflicts with
decisions of the Second and Fourth District Courts of Appeal on a question of
law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
J.) Petitioner Troy Anderson seeks review of the decision of the Fifth District
Court of Appeal in Hilton Hotels Corp. v. Anderson, 153 So. 3d 412 (Fla.
5th DCA 2014), on the ground that it expressly and directly conflicts with
decisions of the Second and Fourth District Courts of Appeal on a question of
law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
FACTS
AND PROCEDURAL HISTORY
AND PROCEDURAL HISTORY
On
September 26, 2008, Anderson was the victim of an armed robbery, carjacking,
and shooting that occurred in the parking lot of an Embassy Suites hotel in
Orlando. Anderson filed an action against Respondents Hilton Hotels Corporation
(Hilton), W2007 Equity Inns Realty, LLC (W2007), Interstate Management Company,
LLC (Interstate), and SecurAmerica, LLC for negligence. Hilton was the parent
company of the Embassy Suites franchise; W2007, an investment fund, owned the
Embassy Suites hotel where Anderson was attacked; Interstate was the management
company that oversaw daily operations of the hotel and hired SecurAmerica to
provide security services for the hotel. Anderson’s wife, Paula Anderson, also
sought damages from the Respondents for loss of consortium.
September 26, 2008, Anderson was the victim of an armed robbery, carjacking,
and shooting that occurred in the parking lot of an Embassy Suites hotel in
Orlando. Anderson filed an action against Respondents Hilton Hotels Corporation
(Hilton), W2007 Equity Inns Realty, LLC (W2007), Interstate Management Company,
LLC (Interstate), and SecurAmerica, LLC for negligence. Hilton was the parent
company of the Embassy Suites franchise; W2007, an investment fund, owned the
Embassy Suites hotel where Anderson was attacked; Interstate was the management
company that oversaw daily operations of the hotel and hired SecurAmerica to
provide security services for the hotel. Anderson’s wife, Paula Anderson, also
sought damages from the Respondents for loss of consortium.
In
October 2011, Anderson proposed separate offers of settlement to Hilton, W2007,
and Interstate. He made a separate offer to SecurAmerica in March 2012.
Anderson offered to settle his claims with Hilton for $650,000, W2007 for $100,000,
Interstate for $650,000, and SecurAmerica for $300,000. The offer made to
Hilton, in its entirety, stated:
October 2011, Anderson proposed separate offers of settlement to Hilton, W2007,
and Interstate. He made a separate offer to SecurAmerica in March 2012.
Anderson offered to settle his claims with Hilton for $650,000, W2007 for $100,000,
Interstate for $650,000, and SecurAmerica for $300,000. The offer made to
Hilton, in its entirety, stated:
PROPOSAL
FOR SETTLEMENT ON BEHALF OF
FOR SETTLEMENT ON BEHALF OF
PLAINTIFF,
TROY [ANDERSON],
TROY [ANDERSON],
PURSUANT
TO RULE 1.442
TO RULE 1.442
Plaintiff, TROY ANDERSON, by and through his undersigned
attorneys, hereby serves his Proposal for Settlement, pursuant to Rule 1.442 of
the Florida Rules of Civil Procedure, to Defendant, HILTON HOTELS CORPORATION,
a foreign corporation, doing business as EMBASSY SUITES ORLANDO AT
INTERNATIONAL DRIVE AND JAMAICAN COURT, also doing business as HILTON
WORLDWIDE, and states in support thereof as follows:
attorneys, hereby serves his Proposal for Settlement, pursuant to Rule 1.442 of
the Florida Rules of Civil Procedure, to Defendant, HILTON HOTELS CORPORATION,
a foreign corporation, doing business as EMBASSY SUITES ORLANDO AT
INTERNATIONAL DRIVE AND JAMAICAN COURT, also doing business as HILTON
WORLDWIDE, and states in support thereof as follows:
1. This Proposal for
Settlement is made pursuant to Florida Statute §768.79, and is extended in
accordance with the provisions of Rule 1.442. Fla.R.Civ.P.
Settlement is made pursuant to Florida Statute §768.79, and is extended in
accordance with the provisions of Rule 1.442. Fla.R.Civ.P.
2. This Proposal for
Settlement is made on behalf of Plaintiff, TROY ANDERSON (“PLAINTIFF”), and is
made to Defendant, HILTON HOTELS CORPORATION, a foreign corporation, doing
business as EMBASSY SUITES ORLANDO AT INTERNATIONAL DRIVE AND JAMAICAN COURT,
also doing business as HILTON WORLDWIDE (“HILTON”).
Settlement is made on behalf of Plaintiff, TROY ANDERSON (“PLAINTIFF”), and is
made to Defendant, HILTON HOTELS CORPORATION, a foreign corporation, doing
business as EMBASSY SUITES ORLANDO AT INTERNATIONAL DRIVE AND JAMAICAN COURT,
also doing business as HILTON WORLDWIDE (“HILTON”).
3. This Proposal for
Settlement is made for the purpose of settling any and all claims made in this
cause by PLAINTIFF against HILTON.
Settlement is made for the purpose of settling any and all claims made in this
cause by PLAINTIFF against HILTON.
4. That in exchange for SIX
HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS ($650,000.00) in hand paid from
HILTON, PLAINTIFF agrees to settle any and all claims asserted against HILTON,
as identified in Case Number 2009-CA-040473-O, brought in the Circuit Court in
and for Orange County, Florida.
HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS ($650,000.00) in hand paid from
HILTON, PLAINTIFF agrees to settle any and all claims asserted against HILTON,
as identified in Case Number 2009-CA-040473-O, brought in the Circuit Court in
and for Orange County, Florida.
5. This Proposal for
Settlement is inclusive of all damages claimed by PLAINTIFF, including all
claims for interest, costs, and expenses and any claims for attorney’s fees.
Settlement is inclusive of all damages claimed by PLAINTIFF, including all
claims for interest, costs, and expenses and any claims for attorney’s fees.
Other
than the specifically designated Respondent and the specific amount proposed,
the offers to Hilton, W2007, Interstate, and SecurAmerica were identical.
than the specifically designated Respondent and the specific amount proposed,
the offers to Hilton, W2007, Interstate, and SecurAmerica were identical.
Additionally,
in October 2011, Paula Anderson made separate offers to each of the Respondents
to settle her loss of consortium claim. Her offers were $15,000 from Hilton,
$15,000 from W2007, $25,000 from Interstate, and $25,000 from SecurAmerica. Her
offers were identical to those of Anderson, other than the name of the
specifically identified Plaintiff, the specifically identified Respondent, and
the specific amount proposed. Prior to trial, however, Paula voluntarily dismissed
her cause of action without prejudice, and Anderson proceeded against each of
the respective Respondents alone.
in October 2011, Paula Anderson made separate offers to each of the Respondents
to settle her loss of consortium claim. Her offers were $15,000 from Hilton,
$15,000 from W2007, $25,000 from Interstate, and $25,000 from SecurAmerica. Her
offers were identical to those of Anderson, other than the name of the
specifically identified Plaintiff, the specifically identified Respondent, and
the specific amount proposed. Prior to trial, however, Paula voluntarily dismissed
her cause of action without prejudice, and Anderson proceeded against each of
the respective Respondents alone.
Following
one mistrial, the parties commenced a second trial in October 2012. Attorneys
from a single legal firm represented Hilton, W2007, and Interstate, while
attorneys from a separate firm represented SecurAmerica. Throughout both
trials, for ease of reference, Hilton, W2007, and Interstate were collectively
referred to as “Embassy Suites.” For example, following jury selection, the jury
was informed that the defendants were “Embassy Suites” and SecurAmerica,
despite the fact that “Embassy Suites” was not specifically named as a party in
Anderson’s amended complaint upon which the parties proceeded to trial. At one
point during trial, the jury even submitted a question to the court, asking,
“What is Interstate?” The parties submitted testimony from witnesses who
explained the relationships between Hilton, W2007, Interstate, and
SecurAmerica.
one mistrial, the parties commenced a second trial in October 2012. Attorneys
from a single legal firm represented Hilton, W2007, and Interstate, while
attorneys from a separate firm represented SecurAmerica. Throughout both
trials, for ease of reference, Hilton, W2007, and Interstate were collectively
referred to as “Embassy Suites.” For example, following jury selection, the jury
was informed that the defendants were “Embassy Suites” and SecurAmerica,
despite the fact that “Embassy Suites” was not specifically named as a party in
Anderson’s amended complaint upon which the parties proceeded to trial. At one
point during trial, the jury even submitted a question to the court, asking,
“What is Interstate?” The parties submitted testimony from witnesses who
explained the relationships between Hilton, W2007, Interstate, and
SecurAmerica.
Near
the close of the trial, when discussing jury instructions and closing
statements, an attorney from the single firm representing Hilton, W2007, and
Interstate stated: “[W]e believe it would be appropriate, and certainly less
cumbersome throughout the instructions to simply talk about our client as Embassy
Suites, rather than the larger definition that they use, or reference they use
throughout their instructions,” referring to the three defendants as one and
the same. Anderson’s attorneys agreed to use that term. Anderson’s attorney
also proposed instructions pertaining to agency or vicarious liability, but
counsel for Hilton, W2007, and Interstate objected to that instruction: “I
don’t think it’s necessary to do that. And the way the jury instructions are
set up, it’s identifying Embassy Suites as, effectively, all of our group of
defendants. There’s really no reason to have a special instruction concerning
agency.” Anderson’s counsel agreed collectively to refer to those defendants as
“Embassy Suites” without further instructing the jury on agency or vicarious
liability. The court read the jury the following instruction:
the close of the trial, when discussing jury instructions and closing
statements, an attorney from the single firm representing Hilton, W2007, and
Interstate stated: “[W]e believe it would be appropriate, and certainly less
cumbersome throughout the instructions to simply talk about our client as Embassy
Suites, rather than the larger definition that they use, or reference they use
throughout their instructions,” referring to the three defendants as one and
the same. Anderson’s attorneys agreed to use that term. Anderson’s attorney
also proposed instructions pertaining to agency or vicarious liability, but
counsel for Hilton, W2007, and Interstate objected to that instruction: “I
don’t think it’s necessary to do that. And the way the jury instructions are
set up, it’s identifying Embassy Suites as, effectively, all of our group of
defendants. There’s really no reason to have a special instruction concerning
agency.” Anderson’s counsel agreed collectively to refer to those defendants as
“Embassy Suites” without further instructing the jury on agency or vicarious
liability. The court read the jury the following instruction:
Members of the jury, you can
assume, for purposes of your deliberation, that Interstate Hotel and Resorts,
Inc., Hilton Hotels Corporation, and W2007 Equity Inns Realty, LLC, are considered
one and the same. These defendants will be referred to in the jury instructions
and verdict form as Embassy Suites.
assume, for purposes of your deliberation, that Interstate Hotel and Resorts,
Inc., Hilton Hotels Corporation, and W2007 Equity Inns Realty, LLC, are considered
one and the same. These defendants will be referred to in the jury instructions
and verdict form as Embassy Suites.
The
jury found “Embassy Suites” and SecurAmerica to be negligent for Anderson’s
injuries and that Anderson was not comparatively negligent. The jury further
found that “Embassy Suites” was 72% negligent, and SecurAmerica was 28%
negligent. Ultimately, the jury found that Anderson sustained a total of
$1,702,066 in damages. The trial court entered judgment in favor of Anderson
and against Hilton, W2007, and Interstate “collectively hereinafter referred to
as EMBASSY SUITES pursuant to the Verdict form agreed to by Plaintiff and all
Defendants” in the amount of $1,225,487.52, and against SecurAmerica in the
amount of $476,578.48.
jury found “Embassy Suites” and SecurAmerica to be negligent for Anderson’s
injuries and that Anderson was not comparatively negligent. The jury further
found that “Embassy Suites” was 72% negligent, and SecurAmerica was 28%
negligent. Ultimately, the jury found that Anderson sustained a total of
$1,702,066 in damages. The trial court entered judgment in favor of Anderson
and against Hilton, W2007, and Interstate “collectively hereinafter referred to
as EMBASSY SUITES pursuant to the Verdict form agreed to by Plaintiff and all
Defendants” in the amount of $1,225,487.52, and against SecurAmerica in the
amount of $476,578.48.
Anderson
then sought attorneys’ fees pursuant to section 768.79, Florida Statutes, and
Florida Rule of Civil Procedure 1.442. The trial court denied Anderson’s
motion, finding that Anderson failed to request a verdict assigning separate
findings of fault among Hilton, W2007, and Interstate. Respondents appealed the
award of damages to Anderson, and Anderson separately appealed the trial
court’s denial of attorneys’ fees. Hilton Hotels, 153 So. 3d at 414. The
Fifth District consolidated the appeals and affirmed the decisions of the trial
court; however, the district court’s opinion only addressed Anderson’s appeal
of the denial of attorneys’ fees. Id. Anderson argued that he was
entitled to attorneys’ fees pursuant to section 768.79 and Rule 1.442 because
his offers of settlement satisfied the requirements of the statute and rule. Id.
at 415-16. However, both the trial court and the district court disagreed,
concluding that the term “PLAINTIFF” in Anderson’s offer could reasonably be
interpreted to include both Anderson and his wife, Paula.
then sought attorneys’ fees pursuant to section 768.79, Florida Statutes, and
Florida Rule of Civil Procedure 1.442. The trial court denied Anderson’s
motion, finding that Anderson failed to request a verdict assigning separate
findings of fault among Hilton, W2007, and Interstate. Respondents appealed the
award of damages to Anderson, and Anderson separately appealed the trial
court’s denial of attorneys’ fees. Hilton Hotels, 153 So. 3d at 414. The
Fifth District consolidated the appeals and affirmed the decisions of the trial
court; however, the district court’s opinion only addressed Anderson’s appeal
of the denial of attorneys’ fees. Id. Anderson argued that he was
entitled to attorneys’ fees pursuant to section 768.79 and Rule 1.442 because
his offers of settlement satisfied the requirements of the statute and rule. Id.
at 415-16. However, both the trial court and the district court disagreed,
concluding that the term “PLAINTIFF” in Anderson’s offer could reasonably be
interpreted to include both Anderson and his wife, Paula.
The
Fifth District relied on its earlier decision, Hibbard ex rel. Carr v.
McGraw, 918 So. 2d 967 (Fla. 5th DCA 2005), for support. Hilton Hotels,
153 So. 3d at 416. In Hibbard, Amanda Carr was a minor who was involved
in an automobile accident with Michael McGraw. Hilton, 153 So. 3d at
416. Carr’s mother, Faith Hibbard, sued McGraw and his employer, Dual
Incorporated, on Carr’s behalf. Id. The defendants jointly offered a
proposal of settlement in favor of Carr to settle “all claims against
Defendants, MICHAEL MCGRAW and DUAL INCORPORATED.” Id. (citing Hibbard,
918 So. 2d at 969). The Fifth District ultimately determined that this proposal
was ambiguous because it could have been reasonably construed to settle either
Carr’s claim separately or the claims of both Carr and Hibbard. Id.
(citing Hibbard, 918 So. 2d 971-72). Likewise, the Fifth District below
determined that Anderson’s proposal lacked sufficient clarity regarding whether
it settled only Anderson’s claim or both Anderson’s and Paula’s claims. Id.
Fifth District relied on its earlier decision, Hibbard ex rel. Carr v.
McGraw, 918 So. 2d 967 (Fla. 5th DCA 2005), for support. Hilton Hotels,
153 So. 3d at 416. In Hibbard, Amanda Carr was a minor who was involved
in an automobile accident with Michael McGraw. Hilton, 153 So. 3d at
416. Carr’s mother, Faith Hibbard, sued McGraw and his employer, Dual
Incorporated, on Carr’s behalf. Id. The defendants jointly offered a
proposal of settlement in favor of Carr to settle “all claims against
Defendants, MICHAEL MCGRAW and DUAL INCORPORATED.” Id. (citing Hibbard,
918 So. 2d at 969). The Fifth District ultimately determined that this proposal
was ambiguous because it could have been reasonably construed to settle either
Carr’s claim separately or the claims of both Carr and Hibbard. Id.
(citing Hibbard, 918 So. 2d 971-72). Likewise, the Fifth District below
determined that Anderson’s proposal lacked sufficient clarity regarding whether
it settled only Anderson’s claim or both Anderson’s and Paula’s claims. Id.
Finally,
the district court cursorily agreed with the trial court that Anderson’s
separate proposals were unenforceable for the purpose of obtaining attorneys’
fees:
the district court cursorily agreed with the trial court that Anderson’s
separate proposals were unenforceable for the purpose of obtaining attorneys’
fees:
Because Anderson requested to
have these three entities treated as one by the jury, and given that the
judgment obtained against the “Embassy Suites” defendants was actually less
than the sum of the demands for judgment made against them, the purpose behind
the enactment of section 768.79 (i.e., to sanction a party for rejecting a
presumptively reasonable proposal for settlement) would be ill-served by
assessing attorney’s fees against Hilton, W2007, and Interstate.
have these three entities treated as one by the jury, and given that the
judgment obtained against the “Embassy Suites” defendants was actually less
than the sum of the demands for judgment made against them, the purpose behind
the enactment of section 768.79 (i.e., to sanction a party for rejecting a
presumptively reasonable proposal for settlement) would be ill-served by
assessing attorney’s fees against Hilton, W2007, and Interstate.
Id. at
416-17.
416-17.
This
review follows.
review follows.
ANALYSIS
Whether
Anderson’s Proposed Offer
Anderson’s Proposed Offer
of
Settlement Was Ambiguous
Settlement Was Ambiguous
Attorneys’
fees under offers of judgment are governed by section 768.79, Florida Statutes
(2011), and Florida Rule of Civil Procedure 1.442. In relevant part, section
768.79 reads:
fees under offers of judgment are governed by section 768.79, Florida Statutes
(2011), and Florida Rule of Civil Procedure 1.442. In relevant part, section
768.79 reads:
(1) In any civil action for
damages filed in the courts of this state . . . [i]f a plaintiff files a demand
for judgment which is not accepted by the defendant within 30 days and the
plaintiff recovers a judgment in an amount at least 25 percent greater than the
offer, she or he shall be entitled to recover reasonable costs and attorney’s
fees incurred from the date of the filing of the demand. . . .
damages filed in the courts of this state . . . [i]f a plaintiff files a demand
for judgment which is not accepted by the defendant within 30 days and the
plaintiff recovers a judgment in an amount at least 25 percent greater than the
offer, she or he shall be entitled to recover reasonable costs and attorney’s
fees incurred from the date of the filing of the demand. . . .
(2) The making of an offer of
settlement which is not accepted does not preclude the making of a subsequent
offer. An offer must:
settlement which is not accepted does not preclude the making of a subsequent
offer. An offer must:
(a) Be in writing and state
that it is being made pursuant to this section.
that it is being made pursuant to this section.
(b) Name the party making it
and the party to whom it is being made.
and the party to whom it is being made.
(c) State with particularity
the amount offered to settle a claim for punitive damages, if any.
the amount offered to settle a claim for punitive damages, if any.
(d) State its total amount.
The offer shall be construed
as including all damages which may be awarded in a final judgment.
as including all damages which may be awarded in a final judgment.
. . . .
(6) Upon motion made by the
offeror within 30 days after the entry of judgment or after voluntary dismissal
or involuntary dismissal, the court shall determine the following:
offeror within 30 days after the entry of judgment or after voluntary dismissal
or involuntary dismissal, the court shall determine the following:
. . . .
(b) If a plaintiff serves an
offer which is not accepted by the defendant, and if the judgment obtained by
the plaintiff is at least 25 percent more than the amount of the offer, the
plaintiff shall be awarded reasonable costs, including investigative expenses,
and attorney’s fees, calculated in accordance with the guidelines promulgated
by the Supreme Court, incurred from the date the offer was served.
offer which is not accepted by the defendant, and if the judgment obtained by
the plaintiff is at least 25 percent more than the amount of the offer, the
plaintiff shall be awarded reasonable costs, including investigative expenses,
and attorney’s fees, calculated in accordance with the guidelines promulgated
by the Supreme Court, incurred from the date the offer was served.
. . . For purposes of the
determination required by paragraph (b), the term “judgment obtained” means the
amount of the net judgment entered, plus any postoffer settlement amounts by
which the verdict was reduced.
determination required by paragraph (b), the term “judgment obtained” means the
amount of the net judgment entered, plus any postoffer settlement amounts by
which the verdict was reduced.
§
768.79, Fla. Stat. (2011). The relevant portions of the current version of Rule
1.442 provide:
768.79, Fla. Stat. (2011). The relevant portions of the current version of Rule
1.442 provide:
(c) Form and Content of
Proposal for Settlement.
Proposal for Settlement.
(1) A proposal shall be in
writing and shall identify the applicable Florida law under which it is being
made.
writing and shall identify the applicable Florida law under which it is being
made.
(2) A proposal shall:
(A) name the party or parties
making the proposal and the party or parties to whom the proposal is being
made;
making the proposal and the party or parties to whom the proposal is being
made;
(B) state that the proposal
resolves all damages that would otherwise be awarded in a final judgment in the
action in which the proposal is served, subject to subdivision (F);
resolves all damages that would otherwise be awarded in a final judgment in the
action in which the proposal is served, subject to subdivision (F);
(C) state with particularity
any relevant conditions;
any relevant conditions;
(D) state the total amount of
the proposal and state with particularity all nonmonetary terms of the
proposal;
the proposal and state with particularity all nonmonetary terms of the
proposal;
(E) state with particularity
the amount proposed to settle a claim for punitive damages, if any;
the amount proposed to settle a claim for punitive damages, if any;
(F) state whether the
proposal includes attorneys’ fees and whether attorneys’ fees are part of the
legal claim; and
proposal includes attorneys’ fees and whether attorneys’ fees are part of the
legal claim; and
(G) include a certificate of
service in the form required by rule 1.080.
service in the form required by rule 1.080.
(3) A proposal may be made by
or to any party or parties and by or to any combination of parties properly
identified in the proposal. A joint proposal shall state the amount and terms
attributable to each party.
or to any party or parties and by or to any combination of parties properly
identified in the proposal. A joint proposal shall state the amount and terms
attributable to each party.
(4) Notwithstanding
subdivision (c)(3), when a party is alleged to be solely vicariously,
constructively, derivatively, or technically liable, whether by operation of
law or by contract, a joint proposal made by or served on such a party need not
state the apportionment or contribution as to that party. Acceptance by any
party shall be without prejudice to the rights of contribution or indemnity.
subdivision (c)(3), when a party is alleged to be solely vicariously,
constructively, derivatively, or technically liable, whether by operation of
law or by contract, a joint proposal made by or served on such a party need not
state the apportionment or contribution as to that party. Acceptance by any
party shall be without prejudice to the rights of contribution or indemnity.
Proposals
under the offer of judgment statute must strictly conform to these statutory
and procedural requirements to entitle the offeror to attorneys’ fees because
the statute is in derogation of the common law that ordinarily requires each
party to pay its own attorneys’ fees. See, e.g., Pratt v. Weiss, 161 So.
3d 1268, 1271 (Fla. 2015) (citing Willis Shaw Express, Inc. v. Hilyer Sod,
Inc., 849 So. 2d 276, 278 (Fla. 2003); Gershuny v. Martin McFall
Messenger Anesthesia Prof’l Ass’n, 539 So. 2d 1131, 1132 (Fla. 1989)). This
Court reviews a party’s entitlement to attorneys’ fees pursuant to section
768.79 and Rule 1.442 de novo. E.g., id. (citing Frosti v. Creel,
979 So. 2d 912, 915 (Fla. 2008)).
under the offer of judgment statute must strictly conform to these statutory
and procedural requirements to entitle the offeror to attorneys’ fees because
the statute is in derogation of the common law that ordinarily requires each
party to pay its own attorneys’ fees. See, e.g., Pratt v. Weiss, 161 So.
3d 1268, 1271 (Fla. 2015) (citing Willis Shaw Express, Inc. v. Hilyer Sod,
Inc., 849 So. 2d 276, 278 (Fla. 2003); Gershuny v. Martin McFall
Messenger Anesthesia Prof’l Ass’n, 539 So. 2d 1131, 1132 (Fla. 1989)). This
Court reviews a party’s entitlement to attorneys’ fees pursuant to section
768.79 and Rule 1.442 de novo. E.g., id. (citing Frosti v. Creel,
979 So. 2d 912, 915 (Fla. 2008)).
Additionally,
the proposal under the statute and rule must be sufficiently clear and free of
ambiguity to allow the offeree the opportunity to fully consider the proposal. State
Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006).
However, this Court has not required the elimination of every ambiguity
— only reasonable ambiguities:
the proposal under the statute and rule must be sufficiently clear and free of
ambiguity to allow the offeree the opportunity to fully consider the proposal. State
Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006).
However, this Court has not required the elimination of every ambiguity
— only reasonable ambiguities:
We recognize that, given the
nature of language, it may be impossible to eliminate all ambiguity. The rule
does not demand the impossible. It merely requires that the settlement proposal
be sufficiently clear and definite to allow the offeree to make an informed
decision without needing clarification. If ambiguity within the proposal could
reasonably affect the offeree’s decision, the proposal will not satisfy the
particularity requirement [of Rule 1.442(c)(2)(C)-(D)].
nature of language, it may be impossible to eliminate all ambiguity. The rule
does not demand the impossible. It merely requires that the settlement proposal
be sufficiently clear and definite to allow the offeree to make an informed
decision without needing clarification. If ambiguity within the proposal could
reasonably affect the offeree’s decision, the proposal will not satisfy the
particularity requirement [of Rule 1.442(c)(2)(C)-(D)].
Id.
Ultimately, “[p]roposals for settlement are intended to end judicial labor, not
create more.” Id. (quoting Lucas v. Calhoun, 813 So. 2d 971, 973
(Fla. 2d DCA 2002)). Accordingly, courts are discouraged from “nitpicking”
proposals for settlement to search for ambiguity. Carey-All Transp., Inc. v.
Newby, 989 So. 2d 1201, 1206 (Fla. 2d DCA 2008) (citing Nichols, 932
So. 2d at 1079).
Ultimately, “[p]roposals for settlement are intended to end judicial labor, not
create more.” Id. (quoting Lucas v. Calhoun, 813 So. 2d 971, 973
(Fla. 2d DCA 2002)). Accordingly, courts are discouraged from “nitpicking”
proposals for settlement to search for ambiguity. Carey-All Transp., Inc. v.
Newby, 989 So. 2d 1201, 1206 (Fla. 2d DCA 2008) (citing Nichols, 932
So. 2d at 1079).
The
decision below is inconsistent with decisions of other district courts of
appeal that have addressed whether a settlement offer is ambiguous when it does
not address other parties to the action. The Second District recently rejected
an argument that a settlement proposal was ambiguous and therefore
unenforceable with respect to attorneys’ fees when the proposal was similar to
the one at issue here. Miley v. Nash, 171 So. 3d 145 (Fla. 2d DCA), rev.
denied, Nash v. Miley, 192 So. 3d 40 (Fla. 2015). Miley involved an
accident between Martha Nash and Kyle Miley in a car owned by Kyle’s father,
Glenn Miley. Id. at 147. Martha filed a complaint against Kyle and Glenn
seeking damages for her injuries, and Garfield Nash, Martha’s husband, joined
the action under a separate claim for loss of consortium. Id. Prior to
trial, Kyle offered a settlement proposal to Martha in “an attempt to resolve
all claims and causes of action resulting from the incident or accident giving
rise to this lawsuit brought by Plaintiff Martha Nash against Defendant Kyle
Miley.” Id. The proposal contained a condition that Martha dismiss her
claims against both Kyle and Glenn, but did not address Garfield Nash’s pending
claim for loss of consortium, which was ultimately voluntarily dismissed prior
to trial. Id. After Martha obtained a favorable jury verdict that was
significantly less than the amount in Kyle’s offer, the trial court denied
Kyle’s motion for attorneys’ fees for several reasons, including the fact that
the offer failed to address Garfield Nash’s loss of consortium claim. Id.
decision below is inconsistent with decisions of other district courts of
appeal that have addressed whether a settlement offer is ambiguous when it does
not address other parties to the action. The Second District recently rejected
an argument that a settlement proposal was ambiguous and therefore
unenforceable with respect to attorneys’ fees when the proposal was similar to
the one at issue here. Miley v. Nash, 171 So. 3d 145 (Fla. 2d DCA), rev.
denied, Nash v. Miley, 192 So. 3d 40 (Fla. 2015). Miley involved an
accident between Martha Nash and Kyle Miley in a car owned by Kyle’s father,
Glenn Miley. Id. at 147. Martha filed a complaint against Kyle and Glenn
seeking damages for her injuries, and Garfield Nash, Martha’s husband, joined
the action under a separate claim for loss of consortium. Id. Prior to
trial, Kyle offered a settlement proposal to Martha in “an attempt to resolve
all claims and causes of action resulting from the incident or accident giving
rise to this lawsuit brought by Plaintiff Martha Nash against Defendant Kyle
Miley.” Id. The proposal contained a condition that Martha dismiss her
claims against both Kyle and Glenn, but did not address Garfield Nash’s pending
claim for loss of consortium, which was ultimately voluntarily dismissed prior
to trial. Id. After Martha obtained a favorable jury verdict that was
significantly less than the amount in Kyle’s offer, the trial court denied
Kyle’s motion for attorneys’ fees for several reasons, including the fact that
the offer failed to address Garfield Nash’s loss of consortium claim. Id.
On
appeal, the Second District reversed and concluded that the proposal complied
with Rule 1.442. Id. Although the court acknowledged that the terms “all
claims” that “[gave] rise to the lawsuit” could have been more definite, it
concluded that these terms were not so ambiguous to prevent Martha Nash from
making an informed decision about her claim. Id. at 148. The court also
held that the proposal did not need to address Garfield Nash’s separate claim
for loss of consortium, which was a separate, identifiable, and derivative
claim. Id. at 148-49 (“Because the proposal explicitly stated that it
was to cover all claims brought by Martha Nash, it was not deficient for
failing to address the other pending claim in the lawsuit brought by an
entirely different plaintiff.”).
appeal, the Second District reversed and concluded that the proposal complied
with Rule 1.442. Id. Although the court acknowledged that the terms “all
claims” that “[gave] rise to the lawsuit” could have been more definite, it
concluded that these terms were not so ambiguous to prevent Martha Nash from
making an informed decision about her claim. Id. at 148. The court also
held that the proposal did not need to address Garfield Nash’s separate claim
for loss of consortium, which was a separate, identifiable, and derivative
claim. Id. at 148-49 (“Because the proposal explicitly stated that it
was to cover all claims brought by Martha Nash, it was not deficient for
failing to address the other pending claim in the lawsuit brought by an
entirely different plaintiff.”).
The
Fourth District has also rejected similar attempts to inject ambiguity into
otherwise sufficient proposals. See Alamo Fin., L.P. v. Mazoff, 112 So.
3d 626 (Fla. 4th DCA 2013); Land & Sea Petroleum, Inc. v. Bus.
Specialists, Inc., 53 So. 3d 348 (Fla. 4th DCA 2011). Alamo Financing
involved a motor vehicle accident between the plaintiff, Matthew Mazoff, and a
defendant, Paola Alvarado-Fernandez. 112 So. 3d at 627. Alamo Financing owned
the vehicle driven by Alvarado-Fernandez, while a separate entity, Alamo Rental
(US), Inc., leased the vehicle to Alvarado-Fernandez. Id. Mazoff sought
damages from Alamo Financing and Alvarado-Fernandez, specifically alleging that
Alamo Financing was vicariously liable for Alvarado-Fernandez’s negligence. Id.
Alamo Financing proposed an offer of settlement to Mazoff that contained a
condition that Mazoff would release Alamo Financing and “their parent
corporations, subsidiaries, officers, directors, and employees” from any and
all claims. Id. Mazoff subsequently moved to add Alamo Rental as a
defendant after learning that Alamo Rental was the entity that leased the car. Id.
at 628.
Fourth District has also rejected similar attempts to inject ambiguity into
otherwise sufficient proposals. See Alamo Fin., L.P. v. Mazoff, 112 So.
3d 626 (Fla. 4th DCA 2013); Land & Sea Petroleum, Inc. v. Bus.
Specialists, Inc., 53 So. 3d 348 (Fla. 4th DCA 2011). Alamo Financing
involved a motor vehicle accident between the plaintiff, Matthew Mazoff, and a
defendant, Paola Alvarado-Fernandez. 112 So. 3d at 627. Alamo Financing owned
the vehicle driven by Alvarado-Fernandez, while a separate entity, Alamo Rental
(US), Inc., leased the vehicle to Alvarado-Fernandez. Id. Mazoff sought
damages from Alamo Financing and Alvarado-Fernandez, specifically alleging that
Alamo Financing was vicariously liable for Alvarado-Fernandez’s negligence. Id.
Alamo Financing proposed an offer of settlement to Mazoff that contained a
condition that Mazoff would release Alamo Financing and “their parent
corporations, subsidiaries, officers, directors, and employees” from any and
all claims. Id. Mazoff subsequently moved to add Alamo Rental as a
defendant after learning that Alamo Rental was the entity that leased the car. Id.
at 628.
After
obtaining a judgment in its favor, Alamo Financing unsuccessfully moved for
attorneys’ fees before the trial court. Id. On appeal, the Fourth
District agreed with Alamo Financing that the proposal was unambiguous and
therefore enforceable. Id. at 629. The court rejected Mazoff’s argument
that the language “all [c]laims made in the present action by the party to whom
this proposal is made including any claims that could be made against Defendant
ALAMO FINANCING, L.P., which arise out of the same occurrence or event set forth
in this action,” could extinguish Mazoff’s claims against Alvarado-Fernandez. Id.
at 629-30. Specifically, the court acknowledged that when read in isolation,
this clause could suggest that Mazoff’s separate claims against
Alvarado-Fernandez may be affected by acceptance of Alamo Financing’s offer;
nonetheless, the context of the entire offer indicated that Alamo Financing was
the only offeror and the only party to be dismissed from suit upon Mazoff’s
acceptance. Id. at 630. The Fourth District similarly dispensed with
Mazoff’s suggestion that the proposal was ambiguous because it could have
constituted a release of Alamo Rental, which was not a party to the lawsuit at
the time the offer was made. Id. at 630-31.
obtaining a judgment in its favor, Alamo Financing unsuccessfully moved for
attorneys’ fees before the trial court. Id. On appeal, the Fourth
District agreed with Alamo Financing that the proposal was unambiguous and
therefore enforceable. Id. at 629. The court rejected Mazoff’s argument
that the language “all [c]laims made in the present action by the party to whom
this proposal is made including any claims that could be made against Defendant
ALAMO FINANCING, L.P., which arise out of the same occurrence or event set forth
in this action,” could extinguish Mazoff’s claims against Alvarado-Fernandez. Id.
at 629-30. Specifically, the court acknowledged that when read in isolation,
this clause could suggest that Mazoff’s separate claims against
Alvarado-Fernandez may be affected by acceptance of Alamo Financing’s offer;
nonetheless, the context of the entire offer indicated that Alamo Financing was
the only offeror and the only party to be dismissed from suit upon Mazoff’s
acceptance. Id. at 630. The Fourth District similarly dispensed with
Mazoff’s suggestion that the proposal was ambiguous because it could have
constituted a release of Alamo Rental, which was not a party to the lawsuit at
the time the offer was made. Id. at 630-31.
In Land
& Sea Petroleum, an offeror-seller made two separate proposals for
settlement to the two different brokers with whom it was engaged in a contract
dispute. 53 So. 3d at 351-52. Other than the name of each broker-offeree, the
proposals were identical and indicated that they attempted to resolve “all
claims as well as any and all claims that could have been or should have been
brought by” the designated broker-offeree against the offeror-seller. Id.
at 352. The Fourth District determined that this offer was sufficiently clear
to support an award of attorneys’ fees. Id. at 353 (“The brokers’
reliance on the fact that the seller did not expressly state that it would be
the party paying the [amount offered] seems to be the type of ‘nit-picking’
which the [Second District] cautioned against in Carey-All.”).
& Sea Petroleum, an offeror-seller made two separate proposals for
settlement to the two different brokers with whom it was engaged in a contract
dispute. 53 So. 3d at 351-52. Other than the name of each broker-offeree, the
proposals were identical and indicated that they attempted to resolve “all
claims as well as any and all claims that could have been or should have been
brought by” the designated broker-offeree against the offeror-seller. Id.
at 352. The Fourth District determined that this offer was sufficiently clear
to support an award of attorneys’ fees. Id. at 353 (“The brokers’
reliance on the fact that the seller did not expressly state that it would be
the party paying the [amount offered] seems to be the type of ‘nit-picking’
which the [Second District] cautioned against in Carey-All.”).
Thus,
the decision of the Fifth District below expressly and directly conflicts with
these decisions of the Second and Fourth Districts. In Miley, Alamo
Financing, and Land & Sea Petroleum, an offer by a single named
offeror to a single offeree was considered sufficiently clear and enforceable,
although it did not address separate pending claims of other parties to the
litigation. However, the Fifth District below determined that such an offer was
ambiguous and unenforceable because it could have affected the unaddressed
claims of Paula Anderson. Therefore, we properly have jurisdiction of this
matter and quash the decision below.
the decision of the Fifth District below expressly and directly conflicts with
these decisions of the Second and Fourth Districts. In Miley, Alamo
Financing, and Land & Sea Petroleum, an offer by a single named
offeror to a single offeree was considered sufficiently clear and enforceable,
although it did not address separate pending claims of other parties to the
litigation. However, the Fifth District below determined that such an offer was
ambiguous and unenforceable because it could have affected the unaddressed
claims of Paula Anderson. Therefore, we properly have jurisdiction of this
matter and quash the decision below.
The
reading of Anderson’s offer as espoused by the Respondents, the trial court,
and the Fifth District below is unreasonable and in contravention of this
Court’s direction in Nichols. The proposal clearly and consistently used
the singular term “PLAINTIFF,” which was defined as Troy Anderson in Paragraph
2. Moreover, Paragraph 3 indicated that each proposal was designed to settle
“any and all claims of PLAINTIFF [Troy Anderson] against [RESPONDENT],” which
by its clear terms defined that the only parties to be affected by acceptance
of the proposal would be Troy Anderson and the designated Respondent. Finally,
the offer made by Troy Anderson had no reference to Paula Anderson or her loss
of consortium claim, which Anderson was not obliged to address in his claim. See
Miley, 171 So. 3d at 148-49. On this point, we note that Paula Anderson
made her own separate, nearly simultaneous offers to each of the Respondents.
If a party receives two simultaneous offers from two separate parties, common
sense dictates that the offeree should possess all the information necessary to
determine whether to settle with one or both of the offerors. See Nichols,
932 So. 2d at 1079 (“[T]he settlement proposal [must] be sufficiently clear and
definite to allow the offeree to make an informed decision without needing
clarification.”). In reading the entirety of Anderson’s proposals, the only
reasonable interpretation is that Troy Anderson offered to settle only
his claims with each Respondent in his offer.
reading of Anderson’s offer as espoused by the Respondents, the trial court,
and the Fifth District below is unreasonable and in contravention of this
Court’s direction in Nichols. The proposal clearly and consistently used
the singular term “PLAINTIFF,” which was defined as Troy Anderson in Paragraph
2. Moreover, Paragraph 3 indicated that each proposal was designed to settle
“any and all claims of PLAINTIFF [Troy Anderson] against [RESPONDENT],” which
by its clear terms defined that the only parties to be affected by acceptance
of the proposal would be Troy Anderson and the designated Respondent. Finally,
the offer made by Troy Anderson had no reference to Paula Anderson or her loss
of consortium claim, which Anderson was not obliged to address in his claim. See
Miley, 171 So. 3d at 148-49. On this point, we note that Paula Anderson
made her own separate, nearly simultaneous offers to each of the Respondents.
If a party receives two simultaneous offers from two separate parties, common
sense dictates that the offeree should possess all the information necessary to
determine whether to settle with one or both of the offerors. See Nichols,
932 So. 2d at 1079 (“[T]he settlement proposal [must] be sufficiently clear and
definite to allow the offeree to make an informed decision without needing
clarification.”). In reading the entirety of Anderson’s proposals, the only
reasonable interpretation is that Troy Anderson offered to settle only
his claims with each Respondent in his offer.
We
reject the suggestion by the Respondents that Troy Anderson’s offer was
actually a joint offer intended to settle the claims of both Troy and Paula
Anderson, as occurred in Audiffred v. Arnold, 161 So. 3d 1274 (Fla.
2015). Not only would such a reading be contrary to the plain language of Troy
Anderson’s proposal, but the proposal in Audiffred was factually
distinguishable from the offer in this case. Although the proposal in Audiffred
indicated that only one party (Valerie Audiffred) made the offer, the proposal
also indicated that it was attempting to resolve “[a]ny and all claims Plaintiffs
have brought against the Defendant,” and it expressly indicated that both
Audiffred and her husband, the other plaintiff in the matter, would dismiss
their respective claims against the defendant upon his acceptance of the offer.
Id. at 1276 (emphasis supplied). We explained that this proposal was a
joint offer that was ultimately unenforceable because it lacked apportionment
among the plaintiffs. Id. at 1279-80. By contrast, Troy Anderson’s
proposals were not joint proposals and made no reference to Paula’s claim for
loss of consortium. Apportionment simply was not an issue below.
reject the suggestion by the Respondents that Troy Anderson’s offer was
actually a joint offer intended to settle the claims of both Troy and Paula
Anderson, as occurred in Audiffred v. Arnold, 161 So. 3d 1274 (Fla.
2015). Not only would such a reading be contrary to the plain language of Troy
Anderson’s proposal, but the proposal in Audiffred was factually
distinguishable from the offer in this case. Although the proposal in Audiffred
indicated that only one party (Valerie Audiffred) made the offer, the proposal
also indicated that it was attempting to resolve “[a]ny and all claims Plaintiffs
have brought against the Defendant,” and it expressly indicated that both
Audiffred and her husband, the other plaintiff in the matter, would dismiss
their respective claims against the defendant upon his acceptance of the offer.
Id. at 1276 (emphasis supplied). We explained that this proposal was a
joint offer that was ultimately unenforceable because it lacked apportionment
among the plaintiffs. Id. at 1279-80. By contrast, Troy Anderson’s
proposals were not joint proposals and made no reference to Paula’s claim for
loss of consortium. Apportionment simply was not an issue below.
Relatedly,
the Respondents assert that Troy Anderson’s counsel admitted during an
evidentiary hearing on Anderson’s entitlement to attorneys’ fees that the
purpose of the offer was to settle the claims of both Troy and Paula. Unfortunately,
the record before this Court does not contain the transcript of this
evidentiary hearing. Nonetheless, any such statement would ultimately be
irrelevant to the issue at hand: whether the proposals submitted by Troy
Anderson were sufficient to allow each Respondent to “make an informed
decision” about settling Troy Anderson’s claim “without needing clarification.”
Nichols, 932 So. 2d at 1079. The underlying motives of a party that
proposes settlement are unrelated to the strict requirements of the offer of
judgment statute and rule, or their purpose, which is to promote prompt and
good-faith efforts to settle claims. See, e.g., id. (“Proposals for
settlement are intended to end judicial labor, not create more.”) (citing Lucas,
813 So. 2d at 973); see also § 768.79(7), Fla. Stat. (granting judicial
discretion to determine if an offer was not made in good faith and disallow an
otherwise mandatory award of fees). Therefore, we conclude that Troy Anderson’s
proposals were sufficiently clear for the purpose of determining his
entitlement to attorneys’ fees.
the Respondents assert that Troy Anderson’s counsel admitted during an
evidentiary hearing on Anderson’s entitlement to attorneys’ fees that the
purpose of the offer was to settle the claims of both Troy and Paula. Unfortunately,
the record before this Court does not contain the transcript of this
evidentiary hearing. Nonetheless, any such statement would ultimately be
irrelevant to the issue at hand: whether the proposals submitted by Troy
Anderson were sufficient to allow each Respondent to “make an informed
decision” about settling Troy Anderson’s claim “without needing clarification.”
Nichols, 932 So. 2d at 1079. The underlying motives of a party that
proposes settlement are unrelated to the strict requirements of the offer of
judgment statute and rule, or their purpose, which is to promote prompt and
good-faith efforts to settle claims. See, e.g., id. (“Proposals for
settlement are intended to end judicial labor, not create more.”) (citing Lucas,
813 So. 2d at 973); see also § 768.79(7), Fla. Stat. (granting judicial
discretion to determine if an offer was not made in good faith and disallow an
otherwise mandatory award of fees). Therefore, we conclude that Troy Anderson’s
proposals were sufficiently clear for the purpose of determining his
entitlement to attorneys’ fees.
Whether
Anderson’s Individual Offers May Be Compared
Anderson’s Individual Offers May Be Compared
to
the Unapportioned Final Judgment
the Unapportioned Final Judgment
The
Respondents also insist that Troy Anderson’s proposals cannot be enforced
because he served individual offers to each Respondent, but only obtained
judgments against “Embassy Suites” and SecurAmerica; thus, the collective
judgment against “Embassy Suites” cannot be compared to individual offers made
to Hilton, W2007, and Interstate when vicarious liability was not pled or found
below. Alternatively, the defendant-respondents argue that Troy Anderson
offered to settle with the collective “Embassy Suites” Respondents for $1.4
million (based on offers to Hilton for $650,000, W2007 for $100,000, and
Interstate for $650,000), but obtained a judgment against “Embassy Suites” for
$1.25 million, which the Respondents assert does not satisfy the 25% threshold
of section 768.69(1). In affirming the trial court’s denial of Anderson’s
motion for attorneys’ fees, the Fifth District stated that Anderson’s offer was
unenforceable to recover attorneys’ fees because “the purpose behind the
enactment of section 768.79 (i.e., to sanction a party for rejecting a
presumptively reasonable proposal for settlement) would be ill-served. . . .” Hilton
Hotels, 153 So. 3d at 416-17. Notwithstanding this vague and unsupported
statement, we disagree.
Respondents also insist that Troy Anderson’s proposals cannot be enforced
because he served individual offers to each Respondent, but only obtained
judgments against “Embassy Suites” and SecurAmerica; thus, the collective
judgment against “Embassy Suites” cannot be compared to individual offers made
to Hilton, W2007, and Interstate when vicarious liability was not pled or found
below. Alternatively, the defendant-respondents argue that Troy Anderson
offered to settle with the collective “Embassy Suites” Respondents for $1.4
million (based on offers to Hilton for $650,000, W2007 for $100,000, and
Interstate for $650,000), but obtained a judgment against “Embassy Suites” for
$1.25 million, which the Respondents assert does not satisfy the 25% threshold
of section 768.69(1). In affirming the trial court’s denial of Anderson’s
motion for attorneys’ fees, the Fifth District stated that Anderson’s offer was
unenforceable to recover attorneys’ fees because “the purpose behind the
enactment of section 768.79 (i.e., to sanction a party for rejecting a
presumptively reasonable proposal for settlement) would be ill-served. . . .” Hilton
Hotels, 153 So. 3d at 416-17. Notwithstanding this vague and unsupported
statement, we disagree.
This
Court has explained that the offer of judgment statute creates an entitlement
to attorneys’ fees when the statutory and procedural requirements have been
satisfied. Attorneys’ Title Ins. Fund, Inc. v. Gorka, 36 So. 3d 646, 649
(Fla. 2010). The mandatory language of section 768.79 reinforces the notion
that a proper offer automatically creates that entitlement, unless the
offer is made in bad faith. See § 768.79(1), Fla. Stat. (“[I]f a
defendant files an offer of judgment which is not accepted by the plaintiff
within 30 days, the defendant shall be entitled to recover reasonable
costs and attorney’s fees . . . . If a plaintiff files a demand for judgment
which is not accepted by the defendant within 30 days . . . she or he shall
be entitled to recover reasonable costs and attorney’s fees . . . .”)
(emphasis supplied); § 768.79(7)(a) (granting courts discretion to withhold
fees to which a party is otherwise entitled if the court determines the offer
was not made in good faith). Thus, an offer that complies with section 768.79
and Rule 1.442 creates a “mandatory right” to collect attorneys’ fees. TGI
Friday’s, Inc. v. Dvorak, 663 So. 2d 606, 611 (Fla. 1995) (citing Schmidt
v. Fortner, 629 So. 2d 1036 (Fla. 4th DCA 1993)).
Court has explained that the offer of judgment statute creates an entitlement
to attorneys’ fees when the statutory and procedural requirements have been
satisfied. Attorneys’ Title Ins. Fund, Inc. v. Gorka, 36 So. 3d 646, 649
(Fla. 2010). The mandatory language of section 768.79 reinforces the notion
that a proper offer automatically creates that entitlement, unless the
offer is made in bad faith. See § 768.79(1), Fla. Stat. (“[I]f a
defendant files an offer of judgment which is not accepted by the plaintiff
within 30 days, the defendant shall be entitled to recover reasonable
costs and attorney’s fees . . . . If a plaintiff files a demand for judgment
which is not accepted by the defendant within 30 days . . . she or he shall
be entitled to recover reasonable costs and attorney’s fees . . . .”)
(emphasis supplied); § 768.79(7)(a) (granting courts discretion to withhold
fees to which a party is otherwise entitled if the court determines the offer
was not made in good faith). Thus, an offer that complies with section 768.79
and Rule 1.442 creates a “mandatory right” to collect attorneys’ fees. TGI
Friday’s, Inc. v. Dvorak, 663 So. 2d 606, 611 (Fla. 1995) (citing Schmidt
v. Fortner, 629 So. 2d 1036 (Fla. 4th DCA 1993)).
Further,
it is clear that this entitlement to attorneys’ fees hinges on the “judgment
obtained,” as opposed to a verdict form returned by the jury. § 768.79(6), Fla.
Stat. (defining “judgment obtained” by a plaintiff as “the amount of the net
judgment entered, plus any postoffer settlement amounts by which the verdict
was reduced”); Frosti, 979 So. 2d at 916; White v. Steak & Ale of
Fla., Inc., 816 So. 2d 546, 549-50 (Fla. 2002) (citing Perez v. Circuit
City Stores, Inc., 721 So. 2d 409, 412 (Fla. 3d DCA 1998)). However,
neither section 768.79 nor Rule 1.442 specifies that a plaintiff must obtain a
judgment from a designated party to be entitled to attorneys’ fees. This
entitlement is only dependent upon a sufficient offer and judgment obtained,
not a judgment “obtained from designated offerees.” Thus, the district court’s
concern with Anderson’s failure to request an assignment of fault among Hilton,
W2007, and Interstate was misplaced.
it is clear that this entitlement to attorneys’ fees hinges on the “judgment
obtained,” as opposed to a verdict form returned by the jury. § 768.79(6), Fla.
Stat. (defining “judgment obtained” by a plaintiff as “the amount of the net
judgment entered, plus any postoffer settlement amounts by which the verdict
was reduced”); Frosti, 979 So. 2d at 916; White v. Steak & Ale of
Fla., Inc., 816 So. 2d 546, 549-50 (Fla. 2002) (citing Perez v. Circuit
City Stores, Inc., 721 So. 2d 409, 412 (Fla. 3d DCA 1998)). However,
neither section 768.79 nor Rule 1.442 specifies that a plaintiff must obtain a
judgment from a designated party to be entitled to attorneys’ fees. This
entitlement is only dependent upon a sufficient offer and judgment obtained,
not a judgment “obtained from designated offerees.” Thus, the district court’s
concern with Anderson’s failure to request an assignment of fault among Hilton,
W2007, and Interstate was misplaced.
Additionally,
the Second District has held that it is improper to combine separate offers and
compare them to the judgment obtained when evaluating a party’s entitlement to
fees. Hess v. Walton, 898 So. 2d 1046 (Fla. 2d DCA 2005); Thornburg
v. Pursell, 476 So. 2d 323, 325 (Fla. 2d DCA 1985). In Hess, Noreen
Walton filed an action against her doctor, Dr. Alfred Hess, for negligence, and
against his employer, Florida Orthopaedic Institute (FOI), for vicarious
liability. 898 So. 2d at 1047. Both Hess and FOI were represented by the same
law firm. Id. at 1047 n.1. Walton proposed to settle with Hess for
$100,000 and with FOI for $15,000. After the jury returned a verdict in favor
of Walton for $23,500, the trial court awarded Walton attorneys’ fees against
FOI because the judgment entered was at least 25% greater than Walton’s offer
to FOI for $15,000. Id.
the Second District has held that it is improper to combine separate offers and
compare them to the judgment obtained when evaluating a party’s entitlement to
fees. Hess v. Walton, 898 So. 2d 1046 (Fla. 2d DCA 2005); Thornburg
v. Pursell, 476 So. 2d 323, 325 (Fla. 2d DCA 1985). In Hess, Noreen
Walton filed an action against her doctor, Dr. Alfred Hess, for negligence, and
against his employer, Florida Orthopaedic Institute (FOI), for vicarious
liability. 898 So. 2d at 1047. Both Hess and FOI were represented by the same
law firm. Id. at 1047 n.1. Walton proposed to settle with Hess for
$100,000 and with FOI for $15,000. After the jury returned a verdict in favor
of Walton for $23,500, the trial court awarded Walton attorneys’ fees against
FOI because the judgment entered was at least 25% greater than Walton’s offer
to FOI for $15,000. Id.
The
Second District subsequently rejected FOI’s appeal regarding the award of
attorneys’ fees. Id. at 1048. The court first explained that section
768.79 and Rule 1.442 were neither ambiguous nor vague; thus, under a strict
construction of the statute and rule, the award against FOI was mandated. Id.
at 1049-50. Further, the court acknowledged that absent allegations or evidence
of bad faith on the part of the offeror, there may be valid, strategic reasons
for an offeror to submit such differentiated offers to separate parties:
Second District subsequently rejected FOI’s appeal regarding the award of
attorneys’ fees. Id. at 1048. The court first explained that section
768.79 and Rule 1.442 were neither ambiguous nor vague; thus, under a strict
construction of the statute and rule, the award against FOI was mandated. Id.
at 1049-50. Further, the court acknowledged that absent allegations or evidence
of bad faith on the part of the offeror, there may be valid, strategic reasons
for an offeror to submit such differentiated offers to separate parties:
It is worth explaining that
the plaintiff may have a logical, strategic reason to make such differentiated
offers. It forces one defendant to settle. The plaintiff obtains money that can
be used to further prosecute the lawsuit or which can be safeguarded from the
risk of a future judgment if the defendants obtain the right to a judgment for
their fees. The plaintiff can eliminate the defendant for whom the jury may
have sympathy, or the defendant who may be on the brink of bankruptcy. If more
than one lawyer is involved, the plaintiff can remove the defendant with the
best lawyer. We doubt that these are considerations addressed by the legislature
when enacting these fee-shifting provisions, but they are logical
considerations and we cannot rule that they are matters that a plaintiff’s
attorney should disregard when making a good faith offer to settle a case. . .
.
the plaintiff may have a logical, strategic reason to make such differentiated
offers. It forces one defendant to settle. The plaintiff obtains money that can
be used to further prosecute the lawsuit or which can be safeguarded from the
risk of a future judgment if the defendants obtain the right to a judgment for
their fees. The plaintiff can eliminate the defendant for whom the jury may
have sympathy, or the defendant who may be on the brink of bankruptcy. If more
than one lawyer is involved, the plaintiff can remove the defendant with the
best lawyer. We doubt that these are considerations addressed by the legislature
when enacting these fee-shifting provisions, but they are logical
considerations and we cannot rule that they are matters that a plaintiff’s
attorney should disregard when making a good faith offer to settle a case. . .
.
Id. at
1051 (footnote omitted).
1051 (footnote omitted).
Additionally,
in Thornburg, several defendants made separate offers to plaintiffs in
the amounts of $500 and $1,500. 476 So. 2d at 324-25. Judgment was ultimately
entered in favor of the plaintiffs for $2,000, but the trial court denied the
plaintiffs’ motion to recover costs after considering the collective offers of
settlement by the various defendants. Id. at 324. The Second District
reversed that order after concluding that it was improper to combine the offer
of $500 with the offer of $1,500 and compare those against the final judgment
of $2,000, noting that Rule 1.442 did not discuss the possibility of
aggregating offers. Id. at 324-25.
in Thornburg, several defendants made separate offers to plaintiffs in
the amounts of $500 and $1,500. 476 So. 2d at 324-25. Judgment was ultimately
entered in favor of the plaintiffs for $2,000, but the trial court denied the
plaintiffs’ motion to recover costs after considering the collective offers of
settlement by the various defendants. Id. at 324. The Second District
reversed that order after concluding that it was improper to combine the offer
of $500 with the offer of $1,500 and compare those against the final judgment
of $2,000, noting that Rule 1.442 did not discuss the possibility of
aggregating offers. Id. at 324-25.
We
agree with the persuasive reasoning of the Second District. The trial court’s
denial of Troy Anderson’s motion for attorneys’ fees and the Fifth District’s
decision affirming that denial ignores both the facts of this case and the
clear requirements of the offer of judgment statute and rule. At the very
least, Anderson’s offer to SecurAmerica alone created a right to attorneys’
fees upon entry of judgment against SecurAmerica: Anderson proposed to settle
his claims against SecurAmerica for $300,000 and obtained a judgment against
SecurAmerica for $476,578.48, which is approximately 159% of Anderson’s offer
— well above the 25% threshold in section 768.79(6)(b).
agree with the persuasive reasoning of the Second District. The trial court’s
denial of Troy Anderson’s motion for attorneys’ fees and the Fifth District’s
decision affirming that denial ignores both the facts of this case and the
clear requirements of the offer of judgment statute and rule. At the very
least, Anderson’s offer to SecurAmerica alone created a right to attorneys’
fees upon entry of judgment against SecurAmerica: Anderson proposed to settle
his claims against SecurAmerica for $300,000 and obtained a judgment against
SecurAmerica for $476,578.48, which is approximately 159% of Anderson’s offer
— well above the 25% threshold in section 768.79(6)(b).
Moreover,
Troy Anderson is also entitled to attorneys’ fees based on his separate offers
to Hilton, W2007, and Interstate. Anderson offered to settle with Hilton for
$650,000, with W2007 for $100,000, and with Interstate for $650,000. The trial
court entered a judgment against these Respondents in the amount of
$1,225,487.52, which is approximately 189% of the offers Anderson made to
Hilton and Interstate, and approximately 1225% of the offer made to W2007. The
only way that these offers could not satisfy the statutory requirement would be
if the offers were to be aggregated, which cannot be tolerated under a strict
construction of section 768.79. See id.; see also Pratt, 161 So.
3d at 1271 (explaining that the offer of judgment statute must be strictly
construed). Thus, Troy Anderson’s offers to Hilton, W2007, and Interstate
complied with the requirements of section 768.79 and Rule 1.442; upon obtaining
a judgment that was at least 25% greater than any one of these offers, Troy
Anderson became entitled to attorneys’ fees. The fact that the judgment entered
by the trial court did not specify that Hilton, W2007, and Interstate were
jointly and severally liable to Anderson for this judgment did not otherwise destroy
this entitlement.
Troy Anderson is also entitled to attorneys’ fees based on his separate offers
to Hilton, W2007, and Interstate. Anderson offered to settle with Hilton for
$650,000, with W2007 for $100,000, and with Interstate for $650,000. The trial
court entered a judgment against these Respondents in the amount of
$1,225,487.52, which is approximately 189% of the offers Anderson made to
Hilton and Interstate, and approximately 1225% of the offer made to W2007. The
only way that these offers could not satisfy the statutory requirement would be
if the offers were to be aggregated, which cannot be tolerated under a strict
construction of section 768.79. See id.; see also Pratt, 161 So.
3d at 1271 (explaining that the offer of judgment statute must be strictly
construed). Thus, Troy Anderson’s offers to Hilton, W2007, and Interstate
complied with the requirements of section 768.79 and Rule 1.442; upon obtaining
a judgment that was at least 25% greater than any one of these offers, Troy
Anderson became entitled to attorneys’ fees. The fact that the judgment entered
by the trial court did not specify that Hilton, W2007, and Interstate were
jointly and severally liable to Anderson for this judgment did not otherwise destroy
this entitlement.
We
reject the argument of the Respondents that Troy Anderson waived this right by
agreeing with the defendants’ proposal to refer to Hilton, W2007, and
Interstate collectively as “Embassy Suites” during trial. As explained above,
nothing in the offer of judgment statute or rule requires a plaintiff to obtain
a judgment against a specific defendant where there are multiple parties to the
action; the plaintiff must simply obtain a judgment that is at least 25%
greater than the offer. § 768.79(6)(b), Fla. Stat. The fact that all
parties agreed to refer to Hilton, W2007, and Interstate as “Embassy Suites”
collectively for the purposes of minimizing juror confusion does not affect
Troy Anderson’s entitlement to attorneys’ fees in this case when that
entitlement is contingent only upon a satisfactory offer of settlement and
judgment that is at least 25% greater than that offer.
reject the argument of the Respondents that Troy Anderson waived this right by
agreeing with the defendants’ proposal to refer to Hilton, W2007, and
Interstate collectively as “Embassy Suites” during trial. As explained above,
nothing in the offer of judgment statute or rule requires a plaintiff to obtain
a judgment against a specific defendant where there are multiple parties to the
action; the plaintiff must simply obtain a judgment that is at least 25%
greater than the offer. § 768.79(6)(b), Fla. Stat. The fact that all
parties agreed to refer to Hilton, W2007, and Interstate as “Embassy Suites”
collectively for the purposes of minimizing juror confusion does not affect
Troy Anderson’s entitlement to attorneys’ fees in this case when that
entitlement is contingent only upon a satisfactory offer of settlement and
judgment that is at least 25% greater than that offer.
CONCLUSION
Reading
the plain language of Troy Anderson’s offers, we hold that these offers to
settle his claims against the Respondents were unambiguous. The “nitpicking” of
these offers by the courts below to find otherwise unnecessarily injected
ambiguity into these proceedings and created more judicial labor, not less. Cf.
Nichols, 932 So. 2d at 1079. Furthermore, the plain language of both
section 768.79 and Florida Rule of Civil Procedure 1.442 indicates that Troy
Anderson’s entitlement to attorneys’ fees was actualized after he submitted
sufficient offers and obtained satisfactory judgments in his favor. The fact that
the parties chose to collectively refer to some of the Respondents for the sake
of convenience before the jury does not alter that entitlement. Therefore, we
quash the decision below and remand for further proceedings consistent with
this opinion.
the plain language of Troy Anderson’s offers, we hold that these offers to
settle his claims against the Respondents were unambiguous. The “nitpicking” of
these offers by the courts below to find otherwise unnecessarily injected
ambiguity into these proceedings and created more judicial labor, not less. Cf.
Nichols, 932 So. 2d at 1079. Furthermore, the plain language of both
section 768.79 and Florida Rule of Civil Procedure 1.442 indicates that Troy
Anderson’s entitlement to attorneys’ fees was actualized after he submitted
sufficient offers and obtained satisfactory judgments in his favor. The fact that
the parties chose to collectively refer to some of the Respondents for the sake
of convenience before the jury does not alter that entitlement. Therefore, we
quash the decision below and remand for further proceedings consistent with
this opinion.
It is
so ordered. (LABARGA, C.J., and PARIENTE, QUINCE, and PERRY, JJ., concur.
CANADY and POLSTON, JJ., concur in result.)
so ordered. (LABARGA, C.J., and PARIENTE, QUINCE, and PERRY, JJ., concur.
CANADY and POLSTON, JJ., concur in result.)
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