40
Fla. L. Weekly D48e

Torts
— Attorney’s fees — Offer of judgment — Trial court properly found that
language in demands for judgment that “plaintiff agrees to settle any and all
claims asserted against defendant,” rendered demands vague, ambiguous, and
unenforceable because it is unclear whether the intent of the demands was to
resolve only claims of plaintiff or to resolve both plaintiff’s claims and loss
of consortium claims of plaintiff’s spouse

HILTON HOTELS CORPORATION, etc., et al., Appellants, v. TROY
ANDERSON AND PAULA ANDERSON, Appellees. 5th District. Case No. 5D13-1722. TROY
ANDERSON, Appellant, v. HILTON HOTELS CORPORATION, etc., et al., Appellees. 5th
District. Case Nos. 5D13-2552 and 5D13-2553. Opinion filed December 19, 2014.
Appeal from the Circuit Court for Orange County, F. Rand Wallis, Judge.
Counsel: Shelley H. Leinicke, of Wicker, Smith, O’Hara, McCoy & Ford, P.A.,
Fort Lauderdale, for Hilton Hotels Corporation, and Pamela A. Chamberlain, of
Mitrani Rynor Adamsky & Toland, P.A., Miami Beach, for SecurAmerica, LLC.
Barbara A. Eagan and Margaret E. Kozan, of Eagan Appellate Law, PLLC, Orlando,
W. Riley Allen, of Riley Allen Law, Orlando, and Simon L. Wiseman, of The
Wiseman Law Firm, Orlando, for Troy Anderson. No Appearance for Paula Anderson.

(EVANDER, Judge.) Hilton Hotels Corporation (“Hilton”),
W2007 Equity Inns Realty, LLC (“W2007”), Interstate Hotels & Resorts, Inc.
(“Interstate”), and SecurAmerica, LLC (“SecurAmerica”) appeal from a final
judgment in a personal injury/negligent security case in which the jury awarded
Troy Anderson (“Anderson”) damages in excess of $1.7 million. Anderson filed a
separate appeal from the trial court’s post-trial orders denying his request
for an award of attorney’s fees under section 768.79, Florida Statutes (2011).
We affirm the final judgment in all respects and write only to address the
issues raised in Anderson’s appeal.

On September 26, 2008, Anderson was the victim of a criminal
attack in the parking lot of an Embassy Suites Hotel in Orlando, Florida. The
hotel was owned and operated by W2007 pursuant to its franchise agreement with
Hilton. Interstate managed the hotel pursuant to its contract with W2007.
SecurAmerica was retained by Interstate to provide security services on the
hotel’s property. Following the attack, Anderson and his wife, Paula, filed a
multi-count second amended complaint against the four defendants. The complaint
asserted that each of the defendants was negligent and, notably, was devoid of
any allegations of vicarious liability.

On October 5, 2011, Anderson served separate demands for
judgment on Hilton, W2007, and Interstate. In his demands for judgment,
Anderson sought $650,000 each from Hilton and Interstate, and $100,000 from
W2007. On March 16, 2012, Anderson served a demand for judgment on SecurAmerica
in the amount of $300,000.

Shortly before the trial commenced in late October 2012,
Paula Anderson and her loss of consortium claim were dropped from the lawsuit.
As a result, only Anderson’s claims were presented to the jury. During the
charge conference, the defendants’ counsel proposed that the jury instructions
and the verdict form reference defendants Hilton, W2007, and Interstate collectively
as “Embassy Suites.” The proposal was accepted by Anderson’s counsel and, at
his request, the jury was given the following instruction:

Members
of the jury, you can assume, for purposes of your deliberation, that Interstate
Hotels and Resorts, Inc., Hilton Hotels Corporation, and W2007 Equity Inns
Realty, LLC are one and the same. These defendants will be referred to in the
jury instructions and verdict form as Embassy Suites.

The jury returned a verdict finding the “Embassy Suites”
defendants 72% at fault, SecurAmerica 28% at fault, and Anderson 0% at fault.
Anderson’s total damages were determined to be $1,702,066. After consideration
of collateral source set-offs and the imposition of taxable costs, the trial
court entered a partial final judgment against the “Embassy Suites” defendants
in the amount of $1,252,188.74, and against SecurAmerica in the amount of
$486,962.28. In its partial final judgment, the trial court reserved
jurisdiction for the determination of all attorney’s fees issues.

Anderson claimed entitlement to attorney’s fees pursuant to
section 768.79, Florida Statutes (2011). That statute provides that where a
plaintiff files a demand for judgment that is not accepted by the defendant
within thirty days, and the plaintiff recovers the judgment in an amount of at
least twenty-five percent greater than the demand, the plaintiff is entitled to
recover reasonable attorney’s fees incurred from the date of the filing of the
demand. § 768.79(1), Fla. Stat. (2011). A demand for judgment must be in
writing, state that it is being made pursuant to the statute, identify the
offeror and offeree, and state the total amount of the demand. § 768.79(2),
Fla. Stat. (2011); see also Fla. R. Civ. P. 1.442.1

An award of attorney’s fees under section 768.79 is a
sanction against the rejecting party for the refusal to accept what is presumed
to be a reasonable offer. Sarkis v. Allstate Ins. Co., 863 So. 2d 210,
222 (Fla. 2003). Because the statute is penal in nature, it must be strictly
construed in favor of the one against whom the penalty is imposed and is never
to be extended by construction. Id. at 223. Strict construction of
section 768.79 is also required because the statute is in derogation of the
common law rule that each party is to pay its own attorney’s fees. Campbell
v. Goldman, 959 So. 2d 223, 226 (Fla. 2007). Because the statute must be
strictly construed, a proposal that is ambiguous will be held to be
unenforceable. Stasio v. McManaway, 936 So. 2d 676, 678 (Fla. 5th DCA
2006). Furthermore, the burden of clarifying the intent or extent of a proposal
for settlement cannot be placed on the party to whom the proposal is made. Dryden
v. Pedemonti, 910 So. 2d 854, 855 (Fla. 5th DCA 2005).

In the instant case, the demands for judgment served by
Anderson on each of the defendants were identical, except for the amount
demanded:

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.

2.
This Proposal for Settlement is made on behalf of Plaintiff, TROY ANDERSON
(“PLAINTIFF”), and is made to [Defendant].

3.
This Proposal for Settlement is made for the purpose of settling any and all
claims made in this cause by PLAINTIFF against [Defendant].

4.
That in exchange for [amount demanded] in hand paid from [Defendant], PLAINTIFF
agrees to settle any and all claims asserted against [Defendant], 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.

(Emphasis added).

The trial court found that the language “PLAINTIFF agrees to
settle any and all claims asserted against [Defendant]” rendered each of the
demands vague, ambiguous, and unenforceable. We agree with the trial court’s
conclusion. Although Paragraph 3 of the demand for judgment reflects that the
proposal was intended to resolve only Troy Anderson’s claim, Paragraph 4 can
reasonably be interpreted to mean that the intent of the demands for judgment
was to resolve the claims of both Troy and Paula Anderson.

In Hibbard ex rel. Carr v. McGraw, 918 So. 2d 967
(Fla. 5th DCA 2005), this court was confronted with similar language in an
offer for judgment. There, Amanda Carr, through her mother, Faith Carr Hibbard,
filed suit against defendants Michael McGraw and his employer, Dual
Incorporated, for injuries sustained in a motor vehicle crash. At the time of
the crash, Carr was a minor. The defendants tendered the following offer of
judgment:

Defendants,
MICHAEL MCGRAW and DUAL INCORPORATED . . . hereby submit their proposal for
settlement in favor of Plaintiff, AMANDA K. CARR, in the total sum of THIRTY
FIVE THOUSAND AND ONE DOLLARS ($35,001.00), exclusive of attorneys’ fees and
costs, in exchange for an executed full release and voluntary dismissal with
prejudice as to all claims against Defendants, MICHAEL MCGRAW and DUAL
INCORPORATED.

Id. at 969 (emphasis added).
Subsequently, the defendants moved to amend the pleadings to show Carr as the
“sole” plaintiff because she had attained the age of majority. Id. at
970. The trial court ordered that “Amanda Carr is an adult and shall appear on
her own behalf as to her individual claims. Faith Carr Hibbard shall remain as
a party Plaintiff as to her parental claim for general damages and claim for
medical bills while Amanda Carr was a minor.” Id.

When the defendants obtained a favorable judgment, the trial
court awarded attorney’s fees pursuant to section 768.79 against Amanda Carr,
based on the unaccepted offer of judgment. Id. This court reversed,
observing that it was unclear whether the offer of judgment was directed only
to Amanda Carr’s claims as opposed to being directed to the claims of both
Amanda and her mother:

At
the time the defendants served their proposal, “Plaintiff, Amanda K. Carr” was not
the named plaintiff. In addition, given the defendants’ position that Carr was
the sole plaintiff, it is unclear whether the proposal to settle “all
claims against the Defendants” included all damages of any kind arising out of
the accident (Carr’s claims as well as the claims of her mother) or only Carr’s
claims for future medical expenses, (future lost earning capacity and pain and
suffering) and not her mother’s claims (medical expenses and loss of
consortium).

Id. at 971-72 (emphasis in original).

As we did in Hibbard, we conclude that the proposals
for settlement in this case were ambiguous. Specifically, it cannot be clearly
determined from the language of the demands for judgment whether the demands
were intended to resolve only Troy Anderson’s claims, or the claims of both
Troy and Paula Anderson.

Although not necessary for the resolution of this appeal, we
also agree with the trial court’s conclusion that the three separate demands
for judgment offered to each of the “Embassy Suites” defendants were
unenforceable for an additional reason. 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.

AFFIRMED. (BERGER and LAMBERT, JJ., concur.)

__________________

1Section 768.79 provides the substantive
law concerning offers and demands of judgment, while rule 1.442 provides for
its procedural mechanism. Winter Park Imports, Inc. v. J.M. Family
Enterprises, 66 So. 3d 336, 338 (Fla. 5th DCA 2011). Rule 1.442 utilizes
the term “proposal for settlement” in referring to both offers of judgment and
demands for judgment.

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