41
Fla. L. Weekly D2169aTop of Form
Fla. L. Weekly D2169aTop of Form
Torts
— Automobile accident — Attorney’s fees — Appellate fees — Proposal for
settlement — Trial court erred in finding that joint proposal for settlement
made by plaintiff to driver of vehicle and owner of vehicle was unenforceable
where plaintiff sought appellate fees only against driver of vehicle — Joint
proposal served on owner of vehicle whose liability was solely vicarious was
not required to be apportioned — With regard to driver of vehicle, against
whom attorney’s fees were sought, proposal was not so ambiguous, because of
statutory cap on owner’s liability, as to make it impossible to make an
informed decision as to whether to accept the proposal
— Automobile accident — Attorney’s fees — Appellate fees — Proposal for
settlement — Trial court erred in finding that joint proposal for settlement
made by plaintiff to driver of vehicle and owner of vehicle was unenforceable
where plaintiff sought appellate fees only against driver of vehicle — Joint
proposal served on owner of vehicle whose liability was solely vicarious was
not required to be apportioned — With regard to driver of vehicle, against
whom attorney’s fees were sought, proposal was not so ambiguous, because of
statutory cap on owner’s liability, as to make it impossible to make an
informed decision as to whether to accept the proposal
ERIK
J. SATERBO and STEPHEN C. SATERBO, Appellants, v. BENJAMIN D. MARKUSON,
Appellee. 2nd District. Case No. 2D14-2737. Opinion filed September 21, 2016.
Appeal from the Circuit Court for Polk County; Wayne M. Durden, Judge. Counsel:
Mark D. Tinker and Charles W. Hall of Banker Lopez Gassler P.A., St.
Petersburg, for Appellants; and James C. Valenti of Valenti Campbell Trohn
Tamayo & Aranda, Lakeland, for Appellant Erik J. Saterbo. Patrick J.
McNamara, David M. Caldevilla, Daniel J. McBreen and Eric D. Nowak of de la
Parte & Gilbert, P.A., Tampa, for Appellee.
J. SATERBO and STEPHEN C. SATERBO, Appellants, v. BENJAMIN D. MARKUSON,
Appellee. 2nd District. Case No. 2D14-2737. Opinion filed September 21, 2016.
Appeal from the Circuit Court for Polk County; Wayne M. Durden, Judge. Counsel:
Mark D. Tinker and Charles W. Hall of Banker Lopez Gassler P.A., St.
Petersburg, for Appellants; and James C. Valenti of Valenti Campbell Trohn
Tamayo & Aranda, Lakeland, for Appellant Erik J. Saterbo. Patrick J.
McNamara, David M. Caldevilla, Daniel J. McBreen and Eric D. Nowak of de la
Parte & Gilbert, P.A., Tampa, for Appellee.
ORDER
ON MOTION FOR REVIEW OF TRIAL COURT’S
ON MOTION FOR REVIEW OF TRIAL COURT’S
ORDER
DENYING APPELLATE ATTORNEYS’ FEES
DENYING APPELLATE ATTORNEYS’ FEES
(MORRIS,
Judge.) Benjamin Markuson seeks review of the trial court’s order denying his
motion for appellate attorneys’ fees. Because we conclude that the trial court
erred by finding that Markuson’s proposal for settlement was unenforceable, we
disapprove that portion of the trial court’s order and remand for entry of an
order granting appellate attorneys’ fees as against Erik Saterbo and his
insurer.
Judge.) Benjamin Markuson seeks review of the trial court’s order denying his
motion for appellate attorneys’ fees. Because we conclude that the trial court
erred by finding that Markuson’s proposal for settlement was unenforceable, we
disapprove that portion of the trial court’s order and remand for entry of an
order granting appellate attorneys’ fees as against Erik Saterbo and his
insurer.
I.
Background of the Case
Background of the Case
Following
an automobile accident between Markuson and Erik, Markuson filed a personal
injury action raising two claims: a negligence claim against Erik (as the
driver) and his father, Stephen Saterbo (as the owner), and a claim for
uninsured motorist benefits against Erik’s insurer. Prior to trial, Markuson
served a proposal for settlement on both Erik and Stephen, wherein Markuson
offered to settle all claims made against both Erik and Stephen in return for a
payment of $1,500,000.1 The proposal did not include an
apportionment of the amount of money due from each defendant. The Saterbos
rejected the proposal, and after a jury trial, the jury entered a verdict in
favor of Markuson, concluding that Erik’s negligence was the cause of loss to
Markuson.
an automobile accident between Markuson and Erik, Markuson filed a personal
injury action raising two claims: a negligence claim against Erik (as the
driver) and his father, Stephen Saterbo (as the owner), and a claim for
uninsured motorist benefits against Erik’s insurer. Prior to trial, Markuson
served a proposal for settlement on both Erik and Stephen, wherein Markuson
offered to settle all claims made against both Erik and Stephen in return for a
payment of $1,500,000.1 The proposal did not include an
apportionment of the amount of money due from each defendant. The Saterbos
rejected the proposal, and after a jury trial, the jury entered a verdict in
favor of Markuson, concluding that Erik’s negligence was the cause of loss to
Markuson.
Despite
the fact that there was only one verdict form, the trial court entered two
final judgments, one against Erik and Stephen jointly and severally for
$600,000 and a second judgment against Erik only in the amount of $2,484,074.
This resulted in a combined total award in the amount of $3,084,074. The two
separate final judgments were the result of a $600,000 statutory cap on
Stephen’s liability pursuant to section 324.021(9)(b)(3), Florida Statutes
(2005). That section limits a car owner’s liability in suits arising out of
automobile accidents. § 324.021(9)(b)(3).
the fact that there was only one verdict form, the trial court entered two
final judgments, one against Erik and Stephen jointly and severally for
$600,000 and a second judgment against Erik only in the amount of $2,484,074.
This resulted in a combined total award in the amount of $3,084,074. The two
separate final judgments were the result of a $600,000 statutory cap on
Stephen’s liability pursuant to section 324.021(9)(b)(3), Florida Statutes
(2005). That section limits a car owner’s liability in suits arising out of
automobile accidents. § 324.021(9)(b)(3).
The
Saterbos appealed the final judgment to this court, and in the appeal, Markuson
filed a motion for appellate attorneys’ fees based on his proposal for
settlement that had been made to both of the Saterbos. However, in the motion,
Markuson requested an award of appellate attorneys’ fees from Erik and his
insurer only. There was no request for appellate attorneys’ fees from Stephen.
Ultimately, this court affirmed the final judgment without opinion. See Saterbo
v. Markuson, 177 So. 3d 618 (Fla. 2d DCA 2015) (table decision). We also
granted Markuson’s motion for appellate attorneys’ fees contingent upon a
determination by the trial court that Markuson was entitled to such fees.
Saterbos appealed the final judgment to this court, and in the appeal, Markuson
filed a motion for appellate attorneys’ fees based on his proposal for
settlement that had been made to both of the Saterbos. However, in the motion,
Markuson requested an award of appellate attorneys’ fees from Erik and his
insurer only. There was no request for appellate attorneys’ fees from Stephen.
Ultimately, this court affirmed the final judgment without opinion. See Saterbo
v. Markuson, 177 So. 3d 618 (Fla. 2d DCA 2015) (table decision). We also
granted Markuson’s motion for appellate attorneys’ fees contingent upon a
determination by the trial court that Markuson was entitled to such fees.
Markuson
then moved in the trial court to tax appellate attorneys’ fees as against Erik
and his insurer. Markuson also sought an award of appellate costs as against
both of the Saterbos. The trial court granted Markuson’s request for costs, but
it determined that he was not entitled to an award of appellate attorneys’ fees
as against Erik and his insurer. The trial court reasoned that Stephen was not
solely vicariously liable for the direct claims made against Erik, and as a
result, Markuson’s joint proposal for settlement failed to strictly comply with
Florida Rule of Civil Procedure 1.442. The trial court also concluded that the
proposal was ambiguous and lacked particularity because it failed to account
for the fact that Stephen’s liability was capped pursuant to section
324.021(9)(b)(3). The trial court explained that because the proposal offered
to settle all claims against both of the Saterbos, including the direct claim
against Erik for which Stephen bore no responsibility, the Saterbos would have
had to speculate regarding their exposure due to the statutory cap on Stephen’s
liability. Thus, according to the trial court, the proposal made it impossible
for the Saterbos to make a reasonable and informed decision whether to accept
or decline the proposal. It is this order which Markuson has asked us to
review.2
then moved in the trial court to tax appellate attorneys’ fees as against Erik
and his insurer. Markuson also sought an award of appellate costs as against
both of the Saterbos. The trial court granted Markuson’s request for costs, but
it determined that he was not entitled to an award of appellate attorneys’ fees
as against Erik and his insurer. The trial court reasoned that Stephen was not
solely vicariously liable for the direct claims made against Erik, and as a
result, Markuson’s joint proposal for settlement failed to strictly comply with
Florida Rule of Civil Procedure 1.442. The trial court also concluded that the
proposal was ambiguous and lacked particularity because it failed to account
for the fact that Stephen’s liability was capped pursuant to section
324.021(9)(b)(3). The trial court explained that because the proposal offered
to settle all claims against both of the Saterbos, including the direct claim
against Erik for which Stephen bore no responsibility, the Saterbos would have
had to speculate regarding their exposure due to the statutory cap on Stephen’s
liability. Thus, according to the trial court, the proposal made it impossible
for the Saterbos to make a reasonable and informed decision whether to accept
or decline the proposal. It is this order which Markuson has asked us to
review.2
II.
Analysis
Analysis
We
conduct a de novo review of a trial court’s determination of eligibility to
receive an award of attorneys’ fees under section 768.79, Florida Statutes
(2011), and rule 1.442. Pratt v. Weiss, 161 So. 3d 1268, 1271 (Fla.
2015). Both section 768.79 and rule 1.442 must be strictly construed because
they are “in derogation of the common law rule that each party is responsible
for its own fees.” Pratt, 161 So. 3d at 1271.
conduct a de novo review of a trial court’s determination of eligibility to
receive an award of attorneys’ fees under section 768.79, Florida Statutes
(2011), and rule 1.442. Pratt v. Weiss, 161 So. 3d 1268, 1271 (Fla.
2015). Both section 768.79 and rule 1.442 must be strictly construed because
they are “in derogation of the common law rule that each party is responsible
for its own fees.” Pratt, 161 So. 3d at 1271.
Joint
proposals for settlement are expressly allowed under rule 1.442(c)(3). And
while rule 1.442(c)(3) does generally require that joint proposals “state the
amount and terms attributable to each party,” rule 1.442(c)(4) contains an
exception applicable to this case. Specifically, rule 1.442(c)(4) provides in
relevant part that “when a party is alleged to be solely vicariously . . .
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.”3
proposals for settlement are expressly allowed under rule 1.442(c)(3). And
while rule 1.442(c)(3) does generally require that joint proposals “state the
amount and terms attributable to each party,” rule 1.442(c)(4) contains an
exception applicable to this case. Specifically, rule 1.442(c)(4) provides in
relevant part that “when a party is alleged to be solely vicariously . . .
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.”3
The
Saterbos argued that because Stephen’s liability was statutorily capped at
$600,000, he was not solely vicariously liable for the entire amount of
damages suffered by Markuson. Thus, they contended that the exception stated in
rule 1.442(c)(4) was inapplicable and that Markuson was still required to
apportion damages between Erik and Stephen in the joint proposal. The trial
court apparently agreed, finding that because Stephen was not vicariously
liable for the direct claim against Erik, the proposal failed to appreciate the
ambiguity that arose when applying the statutory cap on Stephen’s liability.
But our interpretation of the rule leads us to a different result. The focus of
the exception contained in rule 1.442(c)(4) is not whether a party is liable
for the full amount of damages, but rather, it is whether the claims against
the party are direct claims or solely claims of vicarious or other forms of
indirect4 liability. The proposal here offered
to settle all claims against both Erik and Stephen. Yet the fact remains that
the only claim made against Stephen was based on his status as the owner of the
vehicle, that is, one solely of vicarious liability. Consequently,
apportionment was not necessary pursuant to rule 1.442(c)(4), and Markuson’s
proposal was sufficient to meet the requirements contained in the rule. See
Miley v. Nash, 171 So. 3d 145, 149-50 (Fla. 2d DCA), review denied,
192 So. 3d 40 (Fla. 2015).
Saterbos argued that because Stephen’s liability was statutorily capped at
$600,000, he was not solely vicariously liable for the entire amount of
damages suffered by Markuson. Thus, they contended that the exception stated in
rule 1.442(c)(4) was inapplicable and that Markuson was still required to
apportion damages between Erik and Stephen in the joint proposal. The trial
court apparently agreed, finding that because Stephen was not vicariously
liable for the direct claim against Erik, the proposal failed to appreciate the
ambiguity that arose when applying the statutory cap on Stephen’s liability.
But our interpretation of the rule leads us to a different result. The focus of
the exception contained in rule 1.442(c)(4) is not whether a party is liable
for the full amount of damages, but rather, it is whether the claims against
the party are direct claims or solely claims of vicarious or other forms of
indirect4 liability. The proposal here offered
to settle all claims against both Erik and Stephen. Yet the fact remains that
the only claim made against Stephen was based on his status as the owner of the
vehicle, that is, one solely of vicarious liability. Consequently,
apportionment was not necessary pursuant to rule 1.442(c)(4), and Markuson’s
proposal was sufficient to meet the requirements contained in the rule. See
Miley v. Nash, 171 So. 3d 145, 149-50 (Fla. 2d DCA), review denied,
192 So. 3d 40 (Fla. 2015).
The
second argument made by the Saterbos — and articulated by the trial court in
its order — was that the proposal was ambiguous and lacked particularity
thereby making it impossible for the Saterbos to make an informed decision as
to whether to accept the proposal. Both the Saterbos and the trial court
asserted that the Saterbos would have been left to speculate as to their
exposure due to the cap on Stephen’s liability. We disagree with this argument
as it pertains to Erik, and for the reasons explained herein, we do not address
the argument as it pertains to Stephen.
second argument made by the Saterbos — and articulated by the trial court in
its order — was that the proposal was ambiguous and lacked particularity
thereby making it impossible for the Saterbos to make an informed decision as
to whether to accept the proposal. Both the Saterbos and the trial court
asserted that the Saterbos would have been left to speculate as to their
exposure due to the cap on Stephen’s liability. We disagree with this argument
as it pertains to Erik, and for the reasons explained herein, we do not address
the argument as it pertains to Stephen.
Proposals
for settlement must be sufficiently specific so that there are no ambiguities,
so that the recipient can fully evaluate the terms and conditions, and so that
the proposal can be executed without the need for judicial interpretation. State
Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006).
However, the Florida Supreme Court has also recognized that it may not be
possible to eliminate all ambiguity and, therefore, that the rule “merely
requires that the settlement proposal be sufficiently clear and definite to
allow the offeree to make an informed decision without needing clarification.” Id.
for settlement must be sufficiently specific so that there are no ambiguities,
so that the recipient can fully evaluate the terms and conditions, and so that
the proposal can be executed without the need for judicial interpretation. State
Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006).
However, the Florida Supreme Court has also recognized that it may not be
possible to eliminate all ambiguity and, therefore, that the rule “merely
requires that the settlement proposal be sufficiently clear and definite to
allow the offeree to make an informed decision without needing clarification.” Id.
Here,
the proposal offered to settle all claims against Erik and Stephen, but that
fact does not make it ambiguous. Only one count was alleged as against both of
them. As to Stephen, it was based solely on his status as owner of the car,
i.e., one of vicarious liability. However, Erik was jointly and severally
liable for the entire negligence claim. It was only the amount of damages that
was capped as to Stephen. Further, the Saterbos acknowledge that once they
filed their affirmative defense based on the statutory cap, Markuson never
“ma[d]e an issue that . . . the statutory cap would not have applied in this
circumstance.” Thus, even in the absence of an official determination that the
cap applied (e.g., through the entry of a summary judgment on the affirmative
defense), the parties were apparently aware that section 324.021(9)(b)(3)
likely applied to cap Stephen’s liability.
the proposal offered to settle all claims against Erik and Stephen, but that
fact does not make it ambiguous. Only one count was alleged as against both of
them. As to Stephen, it was based solely on his status as owner of the car,
i.e., one of vicarious liability. However, Erik was jointly and severally
liable for the entire negligence claim. It was only the amount of damages that
was capped as to Stephen. Further, the Saterbos acknowledge that once they
filed their affirmative defense based on the statutory cap, Markuson never
“ma[d]e an issue that . . . the statutory cap would not have applied in this
circumstance.” Thus, even in the absence of an official determination that the
cap applied (e.g., through the entry of a summary judgment on the affirmative
defense), the parties were apparently aware that section 324.021(9)(b)(3)
likely applied to cap Stephen’s liability.
The
Saterbos argue that Erik needed further clarification “as to what would happen
if he were to accept the proposal since Stephen would not be obligated to pay
the full amount of the proposal by statute.” But again, it may be “impossible
to eliminate all ambiguity,” and all that is required is that a proposal is
sufficiently clear and definite so as to allow the party served an opportunity
to make an informed decision. Nichols, 932 So. 2d at 1079. And, notably,
rule 1.442(c)(4) provides that where a joint proposal is made, “[a]cceptance by
any party shall be without prejudice to rights of contribution or indemnity.”
Thus, because Erik was liable for the entire amount of damages and because
Stephen would have had the right to seek contribution or indemnity from Erik
for any damages that Stephen obligated himself to pay over and above the
statutory cap, there is no merit to the Saterbos’ argument that the cap on
Stephen’s liability precluded Erik from making an informed decision. At most,
Erik was liable for the entire amount, and at the least, he was liable for the
entire amount minus $600,000 that would be owed by Stephen.
Saterbos argue that Erik needed further clarification “as to what would happen
if he were to accept the proposal since Stephen would not be obligated to pay
the full amount of the proposal by statute.” But again, it may be “impossible
to eliminate all ambiguity,” and all that is required is that a proposal is
sufficiently clear and definite so as to allow the party served an opportunity
to make an informed decision. Nichols, 932 So. 2d at 1079. And, notably,
rule 1.442(c)(4) provides that where a joint proposal is made, “[a]cceptance by
any party shall be without prejudice to rights of contribution or indemnity.”
Thus, because Erik was liable for the entire amount of damages and because
Stephen would have had the right to seek contribution or indemnity from Erik
for any damages that Stephen obligated himself to pay over and above the
statutory cap, there is no merit to the Saterbos’ argument that the cap on
Stephen’s liability precluded Erik from making an informed decision. At most,
Erik was liable for the entire amount, and at the least, he was liable for the
entire amount minus $600,000 that would be owed by Stephen.
Although
the trial court seemed to focus on whether both of the Saterbos could
make independent, informed decisions as to whether to accept the proposal, that
analysis appears to have flowed from the trial court’s erroneous understanding
of the motion before it. The trial court’s order states the motion was made
against both of the Saterbos, but that is incorrect. The motion was made solely
against Erik (and his insurer). Furthermore, while the Saterbos relied on cases
that discuss the necessity for multiple offerees to have the ability to
independently evaluate and settle their respective claims, those cases are
distinguishable because they involved the prior version of rule 1.442(c), which
did not permit joint proposals without apportionment. Cf. Pratt,
161 So. 3d at 1270 n.2; Attorneys’ Title Ins. Fund v. Gorka, 36 So. 3d
646, 650 (Fla. 2010). But because rule 1.442(c)(4) now permits joint proposals
without apportionment where one party is solely vicariously liable — as in
this case — an analysis of whether the proposal was sufficiently unambiguous
as to Stephen is unnecessary to resolve the issue of Markuson’s entitlement to
an award of appellate attorneys’ fees from Erik (and his insurer).
the trial court seemed to focus on whether both of the Saterbos could
make independent, informed decisions as to whether to accept the proposal, that
analysis appears to have flowed from the trial court’s erroneous understanding
of the motion before it. The trial court’s order states the motion was made
against both of the Saterbos, but that is incorrect. The motion was made solely
against Erik (and his insurer). Furthermore, while the Saterbos relied on cases
that discuss the necessity for multiple offerees to have the ability to
independently evaluate and settle their respective claims, those cases are
distinguishable because they involved the prior version of rule 1.442(c), which
did not permit joint proposals without apportionment. Cf. Pratt,
161 So. 3d at 1270 n.2; Attorneys’ Title Ins. Fund v. Gorka, 36 So. 3d
646, 650 (Fla. 2010). But because rule 1.442(c)(4) now permits joint proposals
without apportionment where one party is solely vicariously liable — as in
this case — an analysis of whether the proposal was sufficiently unambiguous
as to Stephen is unnecessary to resolve the issue of Markuson’s entitlement to
an award of appellate attorneys’ fees from Erik (and his insurer).
III.
Conclusion
Conclusion
Under
the unique facts of this case, we conclude that the trial court erred by
determining that Markuson was not entitled to an award of appellate attorneys’
fees pursuant to section 768.79 and rule 1.442(c) as against Erik and his
insurer. We therefore disapprove of the portion of the trial court’s order
dealing with the attorneys’ fees issue, and we remand for the trial court to
determine the amount of appellate attorneys’ fees. We do not disturb the
portion of the trial court’s order awarding appellate costs to Markuson.
(SILBERMAN and SALARIO, JJ., Concur.)
the unique facts of this case, we conclude that the trial court erred by
determining that Markuson was not entitled to an award of appellate attorneys’
fees pursuant to section 768.79 and rule 1.442(c) as against Erik and his
insurer. We therefore disapprove of the portion of the trial court’s order
dealing with the attorneys’ fees issue, and we remand for the trial court to
determine the amount of appellate attorneys’ fees. We do not disturb the
portion of the trial court’s order awarding appellate costs to Markuson.
(SILBERMAN and SALARIO, JJ., Concur.)
__________________
1Pursuant
to section 768.79, Florida Statutes (2011), where a plaintiff serves an offer
of settlement that is not accepted within thirty days and the plaintiff
recovers a judgment that is at least twenty-five percent greater than the
offer, the plaintiff is entitled to recover reasonable attorneys’ fees and
costs incurred from the date the offer was served.
to section 768.79, Florida Statutes (2011), where a plaintiff serves an offer
of settlement that is not accepted within thirty days and the plaintiff
recovers a judgment that is at least twenty-five percent greater than the
offer, the plaintiff is entitled to recover reasonable attorneys’ fees and
costs incurred from the date the offer was served.
2Markuson
has filed a separate appeal of the trial court’s order denying Markuson’s
motion for trial level attorneys’ fees, which was also based on Markuson’s
proposal for settlement. See Markuson v. Saterbo, 2D16-322. That
appeal was abated pending the resolution of this case.
has filed a separate appeal of the trial court’s order denying Markuson’s
motion for trial level attorneys’ fees, which was also based on Markuson’s
proposal for settlement. See Markuson v. Saterbo, 2D16-322. That
appeal was abated pending the resolution of this case.
3Subsection
(c)(4) was added in 2010, with an effective date of January 1, 2011. See
In re Amendments to Fla. Rules of Civil Procedure, 52 So. 3d 579, 581
(Fla. 2010). Prior to the amendment, rule 1.442(c) had been construed to
require apportionment even when one of the parties was simply vicariously
liable. See Carey-All Transp., Inc. v. Newby, 989 So. 2d 1201,
1204 (Fla. 2d DCA 2008).
(c)(4) was added in 2010, with an effective date of January 1, 2011. See
In re Amendments to Fla. Rules of Civil Procedure, 52 So. 3d 579, 581
(Fla. 2010). Prior to the amendment, rule 1.442(c) had been construed to
require apportionment even when one of the parties was simply vicariously
liable. See Carey-All Transp., Inc. v. Newby, 989 So. 2d 1201,
1204 (Fla. 2d DCA 2008).
4The
rule also provides an exception where a party is alleged to be solely
constructively, derivatively, or technically liable.
rule also provides an exception where a party is alleged to be solely
constructively, derivatively, or technically liable.
* *
*
*