42
Fla. L. Weekly D672bTop of Form

Attorney’s
fees — Proposal for settlement — Validity — Proposals for settlement and
accompanying releases were sufficiently clear and definite to allow plaintiffs
to make informed decision on whether to accept the proposal — Trial court
erred in finding proposals ambiguous and unenforceable because the releases
attached to the proposals contained broad language releasing individuals or
entities in addition to the defendant and releasing claims or potential claims
more than and broader than claims related to facts and circumstances in lawsuit
— Language used was typical of language used in general releases and was clear
and unambiguous

COSTCO
WHOLESALE CORPORATION, Appellant, v. ELAINE LLANIO-GONZALEZ and LUIS GONZALEZ,
Appellees. 4th District. Case No. 4D15-4869. March 22, 2017. Appeal from the
Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Gregory M.
Keyser, Judge; L.T. Case No. 502013CA015496XXXMB. Counsel: David F. Cooney and
Kelly Lenahan of Cooney Trybus Kwavnick Peets, PLC, Fort Lauderdale, for
appellant. William M. Winkel, West Palm Beach, for appellees.

(GERBER,
J.) The defendant appeals from the circuit court’s order denying the
defendant’s motion for attorney’s fees. The defendant argues the court erred in
finding that the defendant’s proposals for settlement were ambiguous and
unenforceable. We agree with the defendant and reverse.

Procedural
History

The
plaintiffs sued the defendant for negligence arising from a slip and fall. The
defendant served one proposal for settlement upon the plaintiff wife who sued
for her injuries in the slip and fall, and the other proposal upon the plaintiff
husband who sued for the loss of the wife’s consortium. The proposals were
identical, except for the amounts which the defendant offered to each
plaintiff.

The
proposals’ relevant paragraphs stated:

1. The Defendant . . . hereby
proposes to offer [amount], inclusive of fees and costs, in settlement of all
the claims contained in the above-styled matter, and any and all potential
claims the Plaintiff . . . could make against the Defendant arising out of the
same facts and circumstances referred to in the above-styled matter.

2. The relevant conditions to
this proposal are that Plaintiff . . . will execute a general release,
releasing the Defendant . . . from any and all claims raised or potentially
raised against the Defendant arising out of the incident referred to in the
above-styled matter (see attached proposed Release); Plaintiff’s counsel will
execute a Joint Stipulation for and Dismissal with Prejudice. Upon receipt of
the signed Release and Stipulation for Dismissal, Defendant shall forward the
settlement check to Plaintiff’s counsel. After Defendant has forwarded the
settlement check to Plaintiff’s counsel, the Stipulation and Dismissal shall be
sent to the Court along with an Order of Dismissal for the Court to execute.

3. Defendant and Plaintiff
will bear their own costs and attorney’s fees. The amount being offered does
not specifically include attorneys’ fees because attorneys’ fees are not part
of the claim in this case.

4. The figure against which
the Defendant intends to measure this proposal for settlement is the amount of
the “judgment obtained,” as this term is defined in Section 768.79, Florida
Statutes.

5. This figure does not
include punitive damages as there is no claim for punitive damages.

6. This proposal is intended
to terminate all claims and disputes and obviate the need for further
intervention of the judicial process.

The
release mentioned in paragraph 2 was attached to each proposal. The release
referred to the defendant as “Second Parties” and further stated, in pertinent
part:

When used with reference to a
corporation, the term “Second Parties” shall include both the singular and the
plural, it shall include any and all related, associated or affiliated
companies, any and all related, associated or affiliated parent companies,
corporations, partnerships, sole proprietorships, business entities,
representatives, successors, insurers, attorneys, third party administrators,
privies and assigns, together with each of their respective past, present and
future officers, directors, shareholders, servants, agents, employees,
representatives, partners, trustees, attorneys, insurers, predecessors,
successors, privies, assigns, parent corporations, subsidiaries and any and all
other related, affiliated or associated persons, partnerships, corporations,
firms, or business entities of any type.

The
release proceeded to state that the plaintiffs, by signing the release, agreed
to:

HEREBY remise, release,
acquit, satisfy, and forever discharge the said Second Parties, of and from
all, and all manner of action and actions, cause and causes of action, suits,
debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises, variances,
trespasses, damages, judgments, executions, claims and demands whatsoever, in
law or in equity, which said First Party ever had, now has, or which any
personal representative, successor, heir or assign of said First Party,
hereafter can, shall or may have, against said Second Parties, for, upon or by
reason of any matter, cause or thing whatsoever, from the beginning of the
world to the end of these presents.

This release specifically
covers, but is not limited to, any and all claims for personal injuries, pain
and suffering, hospitals, doctors and nurses and all medical expenses and
claims for lost wages and future lost wages, and extracontractual damages as a
result of the incident and matters set forth in that certain lawsuit referred
to as [case caption].

The
plaintiffs did not accept the defendant’s proposals for settlement. The
defendant ultimately filed a motion for summary judgment. The court granted the
defendant’s motion.

The
defendant then filed a motion to tax costs and attorney’s fees pursuant to its
proposals for settlement. The plaintiffs filed a response, arguing: (1) the
defendant did not make the proposals in “good faith”; (2) the proposals were
“improper”; and (3) the defendant did not strictly comply with Florida Rule of
Civil Procedure 1.442 because the defendant “did not properly state whether the
proposal includes attorneys’ fees.”

The
court granted the defendant’s motion to tax costs. However, the court denied
the defendant’s motion for attorney’s fees on grounds not raised in the
plaintiff’s response. The court found:

[E]ach of Defendant’s
Proposals for Settlements [are] ambiguous and unenforceable as contended by
Plaintiffs in their Response, because the Proposals for Settlement contain
narrow language offering to release only the Defendant . . . and release only
claims arising out of the facts and circumstances referred to in this lawsuit,
while the proposed Releases attached to the Proposals for Settlement contain
broader language releasing individuals or entities in addition to [the
defendant] and releasing claims or potential claims more than and broader than
only the claims related to the facts and circumstances in this lawsuit.

This
appeal followed. The defendant argues the court erred in finding that the
defendant’s proposals for settlement were ambiguous and unenforceable. More
specifically, the defendant argues “well-settled Florida law says that the use
of a standard general release as a condition of a proposal for settlement is
proper and does not invalidate the proposal and because on-point case law says
the language in [the defendant’s] proposed releases is not ambiguous.”

Analysis

Our
review of this argument is de novo. See Kuhajda v. Borden Dairy Co. of Ala.,
LLC, 202 So. 3d 391, 393-94 (Fla. 2016) (“The eligibility to receive
attorney’s fees and costs pursuant to section 768.79 and rule 1.442 is reviewed
de novo.”) (citation omitted). We agree with the defendant’s argument.

To
the extent the court found “the proposed Releases attached to the Proposals for
Settlement contain broader language releasing individuals or entities in
addition to [the defendant],” such a finding is inconsistent with our
precedent. In Board of Trustees of Florida Atlantic University v. Bowman, 853
So. 2d 507 (Fla. 4th DCA 2003), the defendant attached to the settlement
proposal a general release, which defined the “First Party” and “Second Party”
broadly, as including:

[S]ingular and plural, heirs,
legal representatives, agents, employees, attorneys, and assigns of individuals
and the subsidiaries, affiliates, parent corporations, and each of their
respective present and former officers, agents, employees including, but not
limited to, shareholders, directors, attorneys, insurers, sureties, successors
and assigns of corporations, agencies, or political bodies, wherever the
context so admits or requires.

Id.
at
508. We found the broad language in the general release, “even though
expansive, is typical of other general releases and is clear and unambiguous.” Id.
at 509. Similarly, in Alamo Financing, L.P. v. Mazoff, 112 So. 3d 626
(Fla. 4th DCA 2013), we found a release provision including the defendant’s
“parent corporations, subsidiaries, officers, directors, and employees” was
“unambiguous standard release language that did not render the proposal
invalid.” Id. at 631. Here, although the releases’ description of the
“Second Parties” is more expansive than the descriptions in Bowman or Alamo,
the effect is the same. The “Second Parties” definition is “typical of other
general releases and is clear and unambiguous.” Bowman, 853 So. 2d at
509.

To
the extent the court found “the proposed Releases attached to the Proposals for
Settlement contain broader language releasing . . . claims more than and
broader than only the claims related to the facts and circumstances in this
lawsuit,” such a finding also is inconsistent with precedent. The releases
stated the plaintiffs would agree to release the defendant “for, upon or by
reason of any matter, cause or thing whatsoever, from the beginning of the
world to the day of these presents.” However, “[i]t is well-established that
this type of all-inclusive language will bar all claims which have matured
prior to executing the release.” Plumpton v. Cont’l Acreage Dev. Co., Inc.,
830 So. 2d 208, 210 (Fla. 5th DCA 2002); see also Bowman, 853 So. 2d at
508-09 (language releasing defendant from cause of action “from the beginning
of the world to the day of these presents” did not bar any claims the plaintiff
may have against the defendant after the release’s execution date).

Our
conclusion in this case is consistent with our supreme court’s precedent.
“[Rule 1.442] 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.” State Farm Mut.
Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006). For that
reason, courts are discouraged from “nitpicking” settlement proposals for
ambiguities, unless the asserted ambiguity could “reasonably affect the
offeree’s decision” on whether to accept the settlement proposal. Anderson
v. Hilton Hotels Corp., 202 So. 3d 846, 853 (Fla. 2016) (citation and
internal quotation marks omitted). Here, we conclude the proposals for
settlement and accompanying releases were sufficiently clear and definite to
allow the plaintiffs to make an informed decision on whether to accept the
proposals.

Based
on the foregoing, we reverse the circuit court’s order denying the defendant’s
motion for attorney’s fees. We remand for the court to enter an order granting
the defendant’s motion for attorney’s fees and setting an evidentiary hearing
to determine the amount of attorney’s fees which the defendant is entitled to
recover from the plaintiffs.

Reversed
and remanded for proceedings consistent with this opinion.
(WARNER and KUNTZ, JJ., concur.)

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