40 Fla. L. Weekly S199a
Valerie Audiffred and her husband, Robert Kimmons, filed an action against Thomas Arnold that arose from an automobile collision. Arnold, 98 So. 3d at 747. In the complaint, Audiffred sought damages for her injuries and for vehicle repairs. Id. Kimmons sought damages based upon loss of consortium. Id. On April 29, 2010, a settlement proposal was served upon Arnold which provided:
PROPOSAL FOR SETTLEMENT
Plaintiff, Valerie Audiffred, by and through the undersigned counsel hereby make the following proposal for settlement pursuant to F.S. § 768.79 and Rule 1.442 F.R.C.P., to wit:
1. NAME OF PARTY OR PARTIES MAKING THIS PROPOSAL:
Plaintiff: Valerie Audiffred
2. PARTY OR PARTIES TO WHOM THE PROPOSAL IS BEING MADE:
Defendant: Thomas B. Arnold
3. IDENTIFY THE CLAIM OR CLAIMS THE PROPOSAL IS ATTEMPTING TO RESOLVE:
Any and all claims Plaintiffs have brought against the Defendant set forth in the Complaint in the above captioned case and any other claim or claims that may have risen as a result of the subject incident set forth in Plaintiffs’ Complaint, including attorney’s fees and costs.
4. ANY RELEVANT CONDITIONS:
Both Plaintiffs will dismiss this lawsuit, with prejudice, as to the Defendant.
5. TOTAL AMOUNT OF PROPOSAL:
Seventeen Thousand Five Hundred Dollars and no cents ($17,500.00).
the offer in this case was clear and unambiguous in that it identified the parties and clearly identified the monetary and non-monetary conditions, that both plaintiffs would dismiss their lawsuit with prejudice. Regardless of whether or not Valerie Audiffred had the authority to bind Robert Kimmons to a voluntary dismissal in the event that the defendant had accepted the proposal for settlement, the defendant clearly had the ability to evaluate the proposal and accept it on its terms. . . . Under the circumstances of this case[,] where Kimmons was represented by the same attorney that represented Audiffred, the Court finds that the proposal for settlement, including a provision that both plaintiffs would dismiss their lawsuit against the defendant, was unambiguous and legally sufficient.
The Florida Supreme Court stated in Willis Shaw Express, Inc. v. Hilyer Sod, Inc. that “[a] strict construction of the plain language of rule 1.442(c)(3) requires that offers of judgment made by multiple offerors must apportion the amounts attributable to each offeror.” 849 So. 2d 276, 278-79 (Fla. 2003). When multiple offerors make a proposal for settlement to a single offeree, that individual is entitled to know the amount and terms attributable to each offeror in order to properly evaluate the offer. Allstate Ins. Co. v. Materiale, 787 So. 2d 173, 175 (Fla. 2d DCA 2001).
Section 768.79, Florida Statutes, governs offers of judgment, and rule 1.442 delineates the procedures that implement this statutory provision. See Hilyer Sod, 849 So. 2d at 278. Section 768.79 provides, in relevant part:
(1) In any civil action for damages filed in the courts of this state, if 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 incurred by her or him or on the defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award. . . . If 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:
(a) Be in writing and state that it is being made pursuant to this section.
(b) Name the party making it 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.
(d) State its total amount.
The offer shall be construed as including all damages which may be awarded in a final judgment.
(c) Form and Content of Proposal for Settlement.
. . . .
(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;
. . . .
(C) state with particularity any relevant conditions;
(D) state the total amount of the proposal and state with particularity all nonmonetary terms of the proposal;
. . . .
(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.
Fla. R. Civ. P. 1.442 (emphasis supplied).2 In the recent case Pratt v. Weiss, No. SC12-1783 (Fla. Apr. 16, 2015) [40 Fla. L. Weekly S201a], we articulated the standards under which motions for costs and attorney’s fees sought pursuant to section 768.79 and rule 1.442 are evaluated:
The eligibility to receive attorney’s fees and costs pursuant to section 768.79 and rule 1.442 is reviewed de novo. See Frosti v. Creel, 979 So. 2d 912, 915 (Fla. 2008). This Court has held that subdivision (c)(3) of rule 1.442, which requires a joint proposal to state the amount and terms attributable to each offeror or offeree, must be strictly construed because it, as well as the offer of judgment statute, is in derogation of the common law rule that each party is responsible for its own fees. See Hilyer Sod, 849 So. 2d at 278; see also Gershuny v. Martin McFall Messenger Anesthesia Prof. Ass’n, 539 So. 2d 1131, 1132 (Fla. 1989) (“[T]he rule in Florida requires that statutes awarding attorney’s fees must be strictly construed.”). [n.4] Thus, to be valid, an offer of judgment presented by multiple offerors must apportion the amount that is attributable to each offeror. Hilyer Sod, 849 So. 2d at 278-79.
[N.4.] This Court has also strictly applied other provisions of the offer of judgment statute and rule. See Campbell v. Goldman, 959 So. 2d 223, 226-27 (Fla. 2007) (holding that settlement proposal was invalid for failing to cite section 768.79 as mandated by both the statute and the rule).
The purpose of the apportionment requirement in the rule is to allow each offeree to evaluate the terms and the amount of the offer as it pertains to him or her. See id. at 278 (quoting Allstate Ins. Co. v. Materiale, 787 So. 2d 173, 175 (Fla. 2d DCA 2001)). On more than one occasion, the Fourth District has referred to the requirement as a “bright line rule,” to be applied without exception. See Cano v. Hyundai Motor America, Inc., 8 So. 3d 408, 411 (Fla. 4th DCA 2009); Graham v. Yeskel, 928 So. 2d 371, 373 (Fla. 4th DCA 2006). Strict application of the requirement has resulted in the invalidation of offers of judgment where two plaintiffs presented an unapportioned settlement offer to one defendant, see Hilyer Sod, 849 So. 2d at 277; where one plaintiff presented an unapportioned settlement offer to two defendants, even though one defendant was alleged to be only vicariously liable, see Lamb[ v. Matetzschk, 906 So. 2d 1037, 1040 (Fla. 2005)]; [n.5] and where one defendant presented an offer to two plaintiffs that was conditioned upon the acceptance of both plaintiffs, see Attorneys’ Title Insurance Fund, Inc. v. Gorka, 36 So. 3d 646, 647-48 (Fla. 2010). We held that the proposal in Gorka was invalid because the conditional nature of the offer divested each plaintiff of independent control over the decision to settle. Id. at 649.
[N.5.] Lamb was decided prior to the 2011 amendment to rule 1.442.
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 rights of contribution or indemnity.
Plaintiffs, VALERIE AUDIFFRED and ROBERT KIMMONS, by and through undersigned counsel, and pursuant to Florida Statute § 768.79, as well as Florida Rules of Civil Procedure, 1.442 and 1.525, hereby respectfully requests this Court to enter judgment against the Defendant in the amount of Plaintiff’s attorneys’ fees . . . which have accrued since the date Plaintiffs served their Proposal for Settlement on Defendant.
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