40
Fla. L. Weekly D23a

Torts
— Medical malpractice — Attorney’s fees — Proposal for settlement — Joint
proposal — All or nothing proposal made by multiple offerors to a single
offeree is an acceptable proposal for settlement — Cover letter sent to
defendant notifying defendant of the enclosed proposal of settlement was not
itself a proposal for settlement and did not make the two documents ambiguous
— Proposal was not ambiguous because of its use of “plaintiff” and
“plaintiffs” where there was no ambiguity in the proposal as to which claims
were covered, the amount of the total proposal, and the amount assigned to each
claim, including plaintiff’s claim as plenary guardian for patient and claims
on behalf of patient’s minor children — Because proposal was “all or nothing”
joint proposal, if verdict for any of the claimants was not 25% higher than amount
of that claim in the settlement proposal, then none of the claimants could
obtain attorney’s fees under its terms — In case at issue, awards to each
claimant exceeded that threshold, and trial court did not err in awarding
attorney’s fees pursuant to proposal for settlement

HOANG DINH DUONG, M.D., RADIOLOGY ASSOCIATES OF HOLLYWOOD,
P.A. and TRUCK INSURANCE EXCHANGE, Appellants, v. OLIVIA ZIADIE, as plenary
guardian of the person and property of FRANCIS ZIADIE, incapacitated, PHILIP
ZIADIE and PAUL ZIADIE, Appellees. 4th District. Case No. 4D11-1492. December
17, 2014. Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Patti Englander Henning, Judge; L.T. Case No. 04-3336 26.
Counsel: Erik P. Bartenhagen of Hicks, Porter, Ebenfeld & Stein, P.A.,
Miami, and Cindy L. Ebenfeld of Hicks, Porter, Ebenfeld & Stein, P.A.,
Hollywood, for appellants Hoang Dinh Duong, M.D. and Radiology Associates of
Hollywood, P.A. Bard D. Rockenbach, Andrew Harris and Adam J. Richardson of
Burlington & Rockenbach, P.A., West Palm Beach, and Crane A. Johnstone of
Sheldon J. Schlesinger, P.A., Fort Lauderdale, for appellees.

(Warner, Judge.) Following a jury verdict against the
defendant/appellant Dr. Duong in a medical malpractice action, the plaintiff/appellee
moved for an award of fees pursuant to a proposal for settlement. Dr. Duong
claims that the proposal was ambiguous and that it was an improper “all or
nothing” offer which did not allow him to settle the claims of individual
plaintiffs, contrary to Attorneys’ Title Insurance Fund v. Gorka, 36 So.
3d 646 (Fla. 2010). We reject Dr. Duong’s claim that the cover letter
accompanying the proposal for settlement made the proposal ambiguous. We also
conclude that the all or nothing proposal made by multiple offerors to a single
offeree is an acceptable proposal for settlement.

Olivia had been appointed his plenary guardian due to his
incapacity. At the time the complaint was filed, Francis’s children were
minors. Thus, the complaint identified the plaintiff as: “OLIVIA ZIADIE, as
plenary guardian of the person and property of FRANCIS ZIADIE, incapacitated,
and for FRANCIS ZIADIE, as parent and legal guardian of PHILIP ZIADIE and PAUL
ZIADIE, his minor children[.]”

Prior to trial, Olivia made a proposal for settlement. Dr.
Duong received a letter notice of proposal together with a formal Proposal for
Settlement. The formal proposal outlined to whom it was made and its terms,
providing in pertinent part:

2.
The party making the proposal is the Plaintiff, OLIVIA ZIADIE, as plenary
guardian of the person and property of FRANCIS ZIADIE, incapacitated, and for
FRANCIS ZIADIE, as parent and legal guardian of PHILIP ZIADIE and PAUL ZIADIE,
his minor children.

3.
The party to whom this proposal is made is the Defendant, HOANG DINH DUONG,
M.D. only.

. .
. . . .

5.
The total amount of this proposal is ONE MILLION AND 00/100 DOLLARS
($1,000,000.00), as follows:

·
NINE HUNDRED THOUSAND AND 00/100 DOLLARS ($900,000.00) for OLIVIA ZIADIE, as plenary
guardian of the person and property of FRANCIS ZIADIE, incapacitated;

·
FIFTY THOUSAND AND 00/100 DOLLARS ($50,000.00) for PHILIP ZIADIE, the minor son
of FRANCIS ZIADIE; and

·
FIFTY THOUSAND AND 00/100 DOLLARS ($50,000.00) for PAUL ZIADIE, the minor son
of FRANCIS ZIADIE.

. .
. . . .

9.
If there is a judgment of liability as to this Defendant, HOANG DINH DUONG,
M.D., and if the Plaintiffs, OLIVIA ZIADIE, as plenary guardian of the person
and property of FRANCIS ZIADIE, incapacitated, and for FRANCIS ZIADIE, as
parent and legal guardian of PHILIP ZIADIE and PAUL ZIADIE, his minor children
obtains a judgment against this Defendant for at least twenty-five percent more
than the offer made in this proposal the Plaintiff will seek enforcement of
sanctions against this Defendant for attorneys [sic] fees and costs . . .

Dr. Duong did not accept the proposal. At trial, a jury
found Dr. Duong’s negligence was seventy-five percent the cause of Francis’s
injuries, finding another doctor twenty-five percent responsible. After the
court granted the defendants’ motion for setoff it entered judgment as follows:
(1) for Olivia, as guardian of Francis, $3,896,926 in economic damages and $6
million in non-economic damages; and (2) for each child, $172,000 in non-economic
damages.

Olivia moved for attorney’s fees pursuant to the proposal
for settlement, as the award to each claimant exceeded by more than twenty-five
percent the amount of the proposal for settlement as to each claimant. Dr.
Duong claimed that the proposal was ambiguous because the cover letter did not
spell out the exact terms contained in the proposal for settlement. Further,
the proposal did not give Dr. Duong the opportunity to settle the individual
claims but required him to settle all the claims together. He argued, “[A]n
offer that requires acceptance of all plaintiffs’ claims deprives the defendant
of the ability to evaluate each of the plaintiff’s claims and determine whether
to settle one or all.” He relied in part on Attorney’s Title Insurance Fund,
Inc. v. Gorka, 989 So. 2d 1210 (Fla. 2d DCA 2008), which found a proposal
from one offeror to multiple offerees invalid, where the offer was conditioned
upon it being accepted by all offerees.

The trial court granted the motion for fees, concluding that
the offer was not ambiguous. It found that there was a singular plaintiff,
Olivia, asserting claims on behalf of multiple claimants, and that the “all or
nothing” offer was valid and unambiguous. After the court entered the order
determining that the proposal was valid, Dr. Duong moved for reconsideration
based on the Florida Supreme Court’s ruling in Attorneys’ Title Insurance
Fund v. Gorka, 36 So. 3d 646 (Fla. 2010). Gorka held that a joint
offer to multiple offerees, conditioned on acceptance by both offerees, was
invalid because “[t]he conditional nature of the offer divests each party of
independent control of the decision to settle, thereby rendering the offer of
judgment invalid and unenforceable.” Id. at 649. The trial court denied
relief, however, concluding that in this case there was but one plaintiff
asserting claims on behalf of three claimants and one offeree, instead of
multiple offerees as in Gorka. The court entered final judgment for
appellees as to attorney’s fees and costs, awarding them $557,452. Dr. Duong
appeals this order.

The issue of whether an offer of settlement comports with
Florida Rule of Civil Procedure 1.442 and section 768.79, Florida Statutes, is
reviewed de novo. Nationwide Mut. Fire Ins. Co. v. Pollinger, 42
So. 3d 890, 891 (Fla. 4th DCA 2010).

Section 768.79, Florida Statutes (2002), and Florida Rule of
Civil Procedure 1.442 are strictly construed as in derogation of the common law
rule that parties are responsible for their own attorney’s fees. Campbell v.
Goldman, 959 So. 2d 223, 226 (Fla. 2007). Florida Rule of Civil Procedure
1.442 requires a proposal for settlement to, inter alia, “state with
particularity any relevant conditions” and “state the total amount of the
proposal and state with particularity all nonmonetary terms of the proposal.”
Fla. R. Civ. P. 1.442(c)(2)(C)-(D). This “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).

Rule 1.442(c)(3) allows joint proposals under certain
conditions: “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.”
Subsection (c)(3) imposes a “bright line rule.” Cano v. Hyundia Motor Am.,
Inc., 8 So. 3d 408, 410-11 (Fla. 4th DCA 2009). It requires that “offers of
judgment made by multiple offerors must apportion the amounts attributable to
each offeror.” Willis Shaw Exp., Inc. v. Hilyer Sod, Inc., 849 So. 2d
276, 278 (Fla. 2003). Under the statute, a plaintiff who makes an unaccepted
offer may recover such costs and fees if the plaintiff recovers an amount at
least twenty-five percent greater than the plaintiff’s offer. § 768.79(1), Fla.
Stat. (2002).

We summarily reject Dr. Duong’s contention that the cover
letter constituted a separate proposal of settlement and made the two documents
ambiguous. As the trial court found, the cover letter was not itself a proposal
for settlement but merely a notice of the enclosed proposed settlement.
Although it may be theoretically possible for the plaintiffs to have made two
separate and conflicting proposals and enclosed them in the same envelope, it
is not substantively reasonable to assume that the letter was intended as a
separate and conflicting proposal. See, e.g., Alamo Fin., L.P.
v. Mazoff, 112 So. 3d 626, 630 (Fla. 4th DCA 2013) (finding that, while
plaintiff’s claimed ambiguity was “grammatically possible, it [was]
substantively unreasonable” and was “clarified by reference to the proposal for
settlement as a whole”). The Proposal for Settlement was clearly the operative
document, and the letter is not inconsistent with that interpretation.

Dr. Duong contends that the Proposal for Settlement is
itself ambiguous, because it refers to Olivia Ziadie in some places as the sole
plaintiff and in other places refers to “plaintiffs.” The trial court found
that Olivia constituted the single plaintiff. At the time the proposal was
made, Olivia was acting as legal guardian of Francis and in that capacity
acting for the minor children. Therefore, she had authority to make the offer
and settle all three claims. There is no ambiguity in the proposal as to which
claims were covered by the proposal (Francis and his two children), the amount of
the total proposal ($1,000,000), and the amount assigned to each claim
($900,000 to Francis and $50,000 to each child). Cf. Arnold v.
Audiffred, 98 So. 3d 746, 749 (Fla. 1st DCA 2012) (“Here, while the first
two paragraphs stated appellee Audiffred was the sole offeror, the proposal as
a whole offered that both appellee Audiffred and appellee Kimmons would dismiss
their claims against appellant upon appellant’s acceptance. Therefore, the
proposal was a joint proposal.”).

Although the trial court may have erred in concluding that
this was a single proposal rather than a joint proposal, the court correctly
concluded that it was an appropriate “all or nothing” proposal to which Gorka
did not apply. In Gorka, the Florida Supreme Court held, “[A] joint
offer or proposal of settlement that is conditioned on the mutual acceptance of
all joint offerees . . . is invalid and unenforceable because it is conditioned
such that neither offeree can independently evaluate or settle his or her
respective claim by accepting the proposal.” 36 So. 3d at 647. The court found,
“[t]he conditional nature of the offer divests each party of independent
control of the decision to settle,” and “a party’s exposure to potential
consequences from the litigation would be dependently interlocked with the
decision of the other offerees.” Id. at 649-50.

Unlike Gorka, which involved an offer to multiple offerees
conditioned on acceptance of all the offerees, this case involves an offer to a
single offeree, conditioned on that single offeree accepting the offer as to
all of the multiple offerors. Since Gorka was issued in 2010,
this court and other district courts have upheld this type of offer. See
Wolfe v. Culpepper Constructors, Inc., 104 So. 3d 1132, 1134 (Fla. 2d
DCA 2012); Rossmore v. Smith, 55 So. 3d 680, 681 (Fla. 5th DCA 2011); Andrews
v. Frey, 66 So. 3d 376, 379 (Fla. 5th DCA 2011); Donovan Marine, Inc. v.
Delmonico, 40 So. 3d 69, 71-72 (Fla. 4th DCA 2010). These decisions
distinguish Gorka on the grounds that where there is only one offeree,
it is the offeree’s decision alone to accept or reject the proposal, without
the decision being dependent on any other party. Thus, Gorka‘s concern
that the offer there “divest[ed] each party [i.e., offeree] of independent
control of the decision to settle” was not implicated. 36 So. 3d at 649.

Dr. Duong contends that the foregoing decisions were wrongly
decided. Essentially, he argues that the purpose of apportionment is to allow
the offeree to “evaluate” the offer with respect to each offeror, and that such
“evaluation” is meaningless if the offeree cannot accept or decline each offer
individually. This argument overlooks the other main purpose of the
apportionment requirement, which is to allow the trial court to later determine
“whether the judgment against only one of the parties was at least twenty-five
percent more or less than the offer (depending on which party made the offer).”
Allstate Indem. Co. v. Hingson, 808 So. 2d 197, 199 (Fla. 2002); see
also Twiddy v. Guttenplan, 678 So. 2d 488, 489 (Fla. 2d DCA 1996) (“[W]e
are required to reverse because the joint offer of judgment was not specific
enough to enable the trial judge to determine that the . . . verdict against
[one offeror] was at least twenty-five percent less than the offer made on her
behalf.”). The “evaluation” for the offeree also means the importance of
allowing the offeree(s) to consider whether each offeror will later recover the
amount of the offer that is apportioned to them, which would determine the offeree(s)’
liability for attorney’s fees.

In this case, the proposal for settlement gave Dr. Duong all
of the information necessary to evaluate his exposure. Olivia Ziadie offered to
settle the multiple claims of Francis and the children for $1,000,000. The offer
broke down what part of the million dollar settlement would be paid to each of
the claimants. Thus, Dr. Duong could evaluate each claim separately and
determine both the reasonableness of the offer and the likelihood that the
claimant would obtain, as to each claim, a verdict of at least twenty-five
percent in excess of the proposal. There is no obligation for the claimants in
this case to make individual offers to a single offeree.1

Further, because it was an “all or nothing” joint proposal,
if the verdict for any of the claimants was not twenty-five percent
higher than the amount of that claim in the settlement proposal, then none
of the claimants could obtain attorney’s fees under its terms. In other words,
it was not enough that the total amount of the verdict exceed the total amount
of the offer by twenty-five percent; the individual amounts awarded to each
claimant in the verdict must also exceed the individual amounts set forth in
the proposal for settlement for that claimant by twenty-five percent, or no attorney’s
fees could be claimed based upon the proposal for settlement. In this case, the
awards to each claimant exceeded that threshold.

For these reasons, we affirm the order awarding attorney’s
fees pursuant to the proposal for settlement. (Taylor and May, JJ., concur.)

__________________

1Imposing such a requirement could
mean that an offeree could settle the main claim and leave consortium claims
unsettled. It would be rare plaintiffs who would want to hazard trying a
consortium claim without the underlying injury claim being tried at the same
time.

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