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Fla. L. Weekly D1471aTop of Form
Fla. L. Weekly D1471aTop of Form
Attorney’s
fees — Proposal for settlement — Proposal for settlement was ambiguous and
unenforceable where there was a discrepancy between language in proposal and
much broader language in release attached to proposal
fees — Proposal for settlement — Proposal for settlement was ambiguous and
unenforceable where there was a discrepancy between language in proposal and
much broader language in release attached to proposal
KEVIN DOWD, Appellant, v. GEICO
GENERAL INSURANCE COMPANY, Appellee. 3rd District. Case No. 3D15-1725. L.T.
Case No. 11-23508. June 28, 2017. An Appeal from the Circuit Court for
Miami-Dade County, Beatrice Butchko, Judge. Counsel: DEEHL PLLC, and David L.
Deehl; Mandina & Ginsberg, LLP, and Marc R. Ginsberg, for appellant. Cole,
Scott & Kissane, P.A., and Scott A. Cole and Kathryn L. Ender, for
appellee.
GENERAL INSURANCE COMPANY, Appellee. 3rd District. Case No. 3D15-1725. L.T.
Case No. 11-23508. June 28, 2017. An Appeal from the Circuit Court for
Miami-Dade County, Beatrice Butchko, Judge. Counsel: DEEHL PLLC, and David L.
Deehl; Mandina & Ginsberg, LLP, and Marc R. Ginsberg, for appellant. Cole,
Scott & Kissane, P.A., and Scott A. Cole and Kathryn L. Ender, for
appellee.
(Before EMAS, LOGUE, and SCALES,
JJ.)
JJ.)
(LOGUE, J.) Plaintiff, Kevin Dowd,
seeks review of the trial court’s order awarding attorneys’ fees pursuant to
the proposals for settlement filed by his insurance carrier, Geico General
Insurance Company. Because a discrepancy between the language in the proposals
for settlement and the releases creates an ambiguity that renders the
agreements unenforceable, we reverse.
seeks review of the trial court’s order awarding attorneys’ fees pursuant to
the proposals for settlement filed by his insurance carrier, Geico General
Insurance Company. Because a discrepancy between the language in the proposals
for settlement and the releases creates an ambiguity that renders the
agreements unenforceable, we reverse.
The plaintiff was struck by an
underinsured motorist while riding his bicycle within a pedestrian crosswalk.
The plaintiff asserted that the accident resulted in severe and permanent
injuries leading to damages in excess of $300,000. Ultimately, the plaintiff
filed the underlying lawsuit against Geico seeking underinsured/uninsured
motorist coverage through his own insurance policy. Geico filed an answer and
affirmative defenses in response to the complaint.
underinsured motorist while riding his bicycle within a pedestrian crosswalk.
The plaintiff asserted that the accident resulted in severe and permanent
injuries leading to damages in excess of $300,000. Ultimately, the plaintiff
filed the underlying lawsuit against Geico seeking underinsured/uninsured
motorist coverage through his own insurance policy. Geico filed an answer and
affirmative defenses in response to the complaint.
Throughout the course of the
litigation, Geico served two proposals for settlement upon the plaintiff.
litigation, Geico served two proposals for settlement upon the plaintiff.
The proposals for settlement
provided in pertinent part:
provided in pertinent part:
The
Defendant, GEICO GENERAL INSURANCE COMPANY, claims this proposal is attempting
to resolve all of the claims for affirmative relief made by the Plaintiff,
KEVIN DOWD, as against Defendant, GEICO GENERAL INSURANCE COMPANY, in the
above-styled action and all claims for affirmative relief which could have been
raised as compulsory claims by KEVIN DOWD to this action, as well as any
current counter-claims.
Defendant, GEICO GENERAL INSURANCE COMPANY, claims this proposal is attempting
to resolve all of the claims for affirmative relief made by the Plaintiff,
KEVIN DOWD, as against Defendant, GEICO GENERAL INSURANCE COMPANY, in the
above-styled action and all claims for affirmative relief which could have been
raised as compulsory claims by KEVIN DOWD to this action, as well as any
current counter-claims.
However, the releases attached to
each proposal for settlement contained noticeably broader language:
each proposal for settlement contained noticeably broader language:
[Geico] is
released on account of and from any or 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 demands
and liability whatsoever, including any and all claims for personal injuries,
medical expenses or property damage, in law or equity, which against [Geico],
[plaintiff] ever had, now has, or may have in the future (including any claim
for wrongful death), or which his heirs, executors/administrators,
successors/assigns, statutory survivors, and/or personal representatives,
hereafter can, shall, or may have, arising on account of or in connection with
any of the issues that were raised or could have been raised in Case Number:
2011 23508 CA 01 now pending in the Circuit Court of the Eleventh Judicial
Circuit of Florida in and for Miami, Dade County, Florida as well as any future
action arising on account of or in connection with the accident which allegedly
occurred on or about March 27, 2010.
released on account of and from any or 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 demands
and liability whatsoever, including any and all claims for personal injuries,
medical expenses or property damage, in law or equity, which against [Geico],
[plaintiff] ever had, now has, or may have in the future (including any claim
for wrongful death), or which his heirs, executors/administrators,
successors/assigns, statutory survivors, and/or personal representatives,
hereafter can, shall, or may have, arising on account of or in connection with
any of the issues that were raised or could have been raised in Case Number:
2011 23508 CA 01 now pending in the Circuit Court of the Eleventh Judicial
Circuit of Florida in and for Miami, Dade County, Florida as well as any future
action arising on account of or in connection with the accident which allegedly
occurred on or about March 27, 2010.
[Plaintiff]
understands and agrees that in accepting the sum stated above he does so in
full settlement of any and all claims that he now has or which he may have in
the future, or which might accrue to him or his heirs, statutory survivors,
personal representatives, executors/administrators, successors/assigns, as
against any of the herein Releasee [Geico] for damage or injuries as a result
of or in connection with the incident described above, as well as for all
consequences, effects, and results of any such injury or damages, whether the
same is now known or unknown, expected or unexpected, or have already occurred
or developed, or may be latent, or may in the future occur or develop.
understands and agrees that in accepting the sum stated above he does so in
full settlement of any and all claims that he now has or which he may have in
the future, or which might accrue to him or his heirs, statutory survivors,
personal representatives, executors/administrators, successors/assigns, as
against any of the herein Releasee [Geico] for damage or injuries as a result
of or in connection with the incident described above, as well as for all
consequences, effects, and results of any such injury or damages, whether the
same is now known or unknown, expected or unexpected, or have already occurred
or developed, or may be latent, or may in the future occur or develop.
The case was tried and the jury
returned a verdict finding the plaintiff and the driver that struck him to each
be 50% responsible. The jury awarded the plaintiff $110,000 for past medical
expenses, but did not award future damages or past or future pain and
suffering. Following a hearing on post-trial motions filed by both parties, the
trial court entered final judgment in favor of the plaintiff in the amount of
$5,000. Geico moved for attorneys’ fees based on its proposals for settlement.1
returned a verdict finding the plaintiff and the driver that struck him to each
be 50% responsible. The jury awarded the plaintiff $110,000 for past medical
expenses, but did not award future damages or past or future pain and
suffering. Following a hearing on post-trial motions filed by both parties, the
trial court entered final judgment in favor of the plaintiff in the amount of
$5,000. Geico moved for attorneys’ fees based on its proposals for settlement.1
The plaintiff argued that the
proposals for settlement were ambiguous due to a discrepancy in the language
between the actual proposals and the respective releases attached to each one.
The trial court subsequently held a hearing on Geico’s motion for entitlement
to fees and found that the proposals for settlement were not ambiguous and
granted Geico entitlement to attorneys’ fees. An amended final judgment
awarding Geico $45,000 was entered, and this appeal followed.
proposals for settlement were ambiguous due to a discrepancy in the language
between the actual proposals and the respective releases attached to each one.
The trial court subsequently held a hearing on Geico’s motion for entitlement
to fees and found that the proposals for settlement were not ambiguous and
granted Geico entitlement to attorneys’ fees. An amended final judgment
awarding Geico $45,000 was entered, and this appeal followed.
On appeal, the plaintiff again
argues that language in the proposals for settlement cannot be reconciled with
the language of the releases, thereby resulting in ambiguity. We agree.
argues that language in the proposals for settlement cannot be reconciled with
the language of the releases, thereby resulting in ambiguity. We agree.
Florida Rule of Civil Procedure
1.442 requires that proposals for settlement be described with particularity.
While perfection is not required, clarity is.
1.442 requires that proposals for settlement be described with particularity.
While perfection is not required, clarity is.
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.
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.
State Farm Mut. Auto. Ins. Co. v.
Nichols, 932 So. 2d 1067, 1079 (Fla. 2006).
Nichols, 932 So. 2d 1067, 1079 (Fla. 2006).
A discrepancy between a limited
proposal of settlement and a much broader release, as in this case, creates the
type of ambiguity that runs afoul of the particularity requirement in the Rule.
See S. Fla. Pool and Spa Corp. v. Sharpe Inv. Land Tr., 207 So. 3d
301, 303 (Fla. 3d DCA 2016) (holding that where it was unclear when reading a
proposal for settlement in tandem with its accompanying release whether a claim
for fees was included or excluded from the settlement, the “lack of clarity
creates an ambiguity rendering the proposal unenforceable”).
proposal of settlement and a much broader release, as in this case, creates the
type of ambiguity that runs afoul of the particularity requirement in the Rule.
See S. Fla. Pool and Spa Corp. v. Sharpe Inv. Land Tr., 207 So. 3d
301, 303 (Fla. 3d DCA 2016) (holding that where it was unclear when reading a
proposal for settlement in tandem with its accompanying release whether a claim
for fees was included or excluded from the settlement, the “lack of clarity
creates an ambiguity rendering the proposal unenforceable”).
Here, the plaintiff may still have
had a viable PIP claim against Geico and it is unclear under the terms of the
releases whether such a claim was intended to be included among those being
released. While it is not a “compulsory” claim as set forth in the proposals,
it may fall under the umbra of the broader release language. Accordingly, the
plaintiff’s decision to accept or reject the proposals was reasonably affected
by the ambiguity created among the documents. See Nichols, 932
So. 2d at 1079.
had a viable PIP claim against Geico and it is unclear under the terms of the
releases whether such a claim was intended to be included among those being
released. While it is not a “compulsory” claim as set forth in the proposals,
it may fall under the umbra of the broader release language. Accordingly, the
plaintiff’s decision to accept or reject the proposals was reasonably affected
by the ambiguity created among the documents. See Nichols, 932
So. 2d at 1079.
Given that Geico’s entitlement to
attorneys’ fees was based upon the proposals for settlement and we hold the
proposals to be unenforceable because of the ambiguity created between the
releases and the proposals, we reverse the order on appeal and remand for
further proceedings consistent with this opinion.
attorneys’ fees was based upon the proposals for settlement and we hold the
proposals to be unenforceable because of the ambiguity created between the
releases and the proposals, we reverse the order on appeal and remand for
further proceedings consistent with this opinion.
Reversed and remanded.
__________________
1The
plaintiff appealed the final judgment, and this court issued a per curiam
affirmance. Dowd v. Geico Gen. Ins. Co., 179 So. 3d 332 (Fla. 3d DCA
2015) (table decision).
plaintiff appealed the final judgment, and this court issued a per curiam
affirmance. Dowd v. Geico Gen. Ins. Co., 179 So. 3d 332 (Fla. 3d DCA
2015) (table decision).
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