42
Fla. L. Weekly D376bTop of Form

Torts
— Settlement — Attorney’s fees — Trial court erred in awarding attorneys’
fees on basis of proposal for settlement because a valid proposal for
settlement must comply with both rule 1.442 and section 768.79 and settlement
proposal at issue does not comply with particularity requirement in rule
1.442(c)(2)(D) — Release form attached to proposal concerning waiver of loss
of consortium claims is ambiguous when read together with Section 768.0415,
which allows unmarried dependent children to bring loss of consortium claims
based in negligence — Proposal for settlement is ambiguous, and therefore
unenforceable, because it would have been impossible for offeree to comply with
loss-of-consortium waiver since he could not honestly represent that he had no
qualifying dependents under Section 768.0415 — By signing waiver offeree would
be representing that he has no unmarried dependent children which is simply
untrue

ANTHONY
P. DIECIDUE, Appellant, v. PETER JAMES LEWIS, TIMOTHY MICHAEL NOWAK, and
ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee. 2nd District. Case
No. 2D15-1852. Opinion filed February 10, 2017. Appeal from the Circuit Court
for Hillsborough County; Mark Wolfe, Judge. Counsel: David M. Caldevilla, of de
la Parte & Gilbert, P.A., and J. Daniel Clark, of Clark & Martino,
P.A., Tampa, for Appellant. Kansas R. Gooden, and Loreyn P. Raab, of Boyd &
Jenerette, P.A., Jacksonville, and Bradley E. Powers, of Banker Lopez Gassler,
P.A., Tampa, for Appellee Allstate Property and Casualty Insurance Company. No
appearances for Appellees Peter James Lewis and Michael Nowak.

(BADALAMENTI,
Judge.) Anthony P. Diecidue appeals the trial court’s award of attorneys’ fees
and costs to Allstate Property and Casualty Insurance Company (Allstate)
pursuant to a proposal for settlement (proposal) governed by section 768.79,
Florida Statutes (2012), and Florida Rule of Civil Procedure 1.442. Diecidue
asserts that a release form attached to Allstate’s proposal creates ambiguities
within the offer itself. Specifically, Diecidue argues that the release form’s
inclusion of a waiver of loss of consortium claims requires Diecidue to
misrepresent that he has no children eligible to file a claim for loss of
consortium. After careful review and the benefit of oral argument, we reverse
the order granting Allstate attorneys’ fees and costs and remand for further
proceedings.

On
April 16, 2011, Peter Lewis lost control of a vehicle, which was owned by
Michael Nowak. The vehicle veered off the road and entered a little league
ballpark while games were in progress. Diecidue, a coach for one of the competing
teams, ran from the pitcher’s mound up to the fence surrounding the field and
began yelling to warn onlookers in the bleachers, who were sitting with their
backs turned to the vehicle. As the vehicle crashed through the fence
surrounding the little league field, it slowed down enough for Diecidue to
somehow reach through the vehicle’s front driver-side window, seize the
controls, and cause the vehicle to stop on the pitcher’s mound. Diecidue
injured his back in the process.

Diecidue
initiated a lawsuit which included negligence claims against Lewis and Nowak
and an uninsured motorist (UM) claim against Diecidue’s insurer, Allstate. On
October 5, 2012, Allstate served Diecidue with a proposal for settlement for
$50,000, inclusive of attorneys’ fees and costs, which Diecidue rejected.

The
case proceeded to a jury trial, where Allstate was the primary defendant.1 The jury found that Lewis was twenty
percent negligent and Diecidue was eighty percent negligent and awarded
Diecidue total damages of $18,500. Diecidue’s damage award was reduced by 80
percent for his proportion of contributory negligence and then by an additional
$15,000 for his collateral recovery from a personal injury protection (PIP)
policy and an auto medical payments (MedPay) policy. These reductions lowered
Diecidue’s net verdict to $3700.

After
the jury rendered its verdict, Diecidue and Allstate filed competing motions
for taxation of costs. Allstate’s motion also included a request for attorneys’
fees based on Diecidue’s rejection of Allstate’s prior proposal for settlement.
The trial court subsequently entered a final judgment awarding Diecidue
$64,401.34 in taxable costs and $89.56 in insurance premiums, plus statutory
interest.2 The order reserved jurisdiction to
award additional attorneys’ fees and costs.

A
hearing was conducted on Allstate’s motion for taxation of costs and fees.
Diecidue argued that Allstate’s proposal for settlement was inconsistent with
the release form attached to the proposal, which created ambiguities.
Specifically, Diecidue pointed out that the release required Diecidue to
falsely represent that he had no unmarried dependents able to bring a claim for
loss of consortium. The trial court rejected Diecidue’s arguments and entered
two duplicative orders on Allstate’s motion to tax costs and fees. The orders
each awarded Allstate $103,744.31 in attorneys’ fees and costs, which were set
off against Diecidue’s previous award of costs, for a net award of $35,553.41
to Allstate.

Whether
a proposal for settlement complies with rule 1.442 and section 768.79 is
subject to de novo review. Tran v. Anvil Iron Works, Inc., 110 So. 3d
923, 925 (Fla. 2d DCA 2013) (citing Jamieson v. Kurland, 819 So. 2d 267,
268 (Fla. 2d DCA 2002)). Rule 1.442(c)(2)(C)-(D) requires the offeror to “state
with particularity any relevant conditions” of the proposal and to “state with
particularity all nonmonetary terms of the proposal.” “The term ‘particularity’
as used in rule 1.442(c) means that the offeror must provide ‘specific details’
of any condition or nonmonetary term.” 1 Nation Tech. Corp. v. A1
Teletronics, Inc., 924 So. 2d 3, 6 (Fla. 2d DCA 2005) (quoting Swartsel
v. Publix Super Mkts., Inc., 882 So. 2d 449, 453 (Fla. 4th DCA 2004)). “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 aims to prevent ambiguity, not breadth. Id. That is, the supreme
court has instructed that courts are only to invalidate a proposal for
settlement for “reasonable ambiguities” and has discouraged courts from
nitpicking a proposal for inconsequential ambiguities. Anderson v. Hilton
Hotels Corp., 202 So. 3d 846, 852-53 (Fla. 2016). That said, because
section 768.79 and rule 1.442 are in derogation of common law, they demand
strict construction and compliance. See Diamond Aircraft Indus., Inc.
v. Horowitch, 107 So. 3d 362, 377 (Fla. 2013). Under section 768.79, an
award of attorneys’ fees ultimately depends “on the difference between the
amount of a rejected offer and the amount of a later judgment.” TGI
Friday’s, Inc. v. Dvorak, 663 So. 2d 606, 612 (Fla. 1995). If a defendant’s
proposal for settlement is twenty-five percent greater than the judgment
ultimately obtained by the plaintiff, then the defendant is entitled to an
award of attorneys’ fees and costs. § 768.79(1).

We
hold the provision of the release form concerning waiver of loss of consortium
claims to be ambiguous. The penultimate paragraph of the release reads, “To
procure payment of the consideration referred to herein, I do hereby declare
and represent that I have no qualifying disability and qualifying
dependent(s) which would enable a claim to be made by or on behalf of any
unmarried dependent, as defined by section 768.0415, Florida Statutes (2007).”
(Emphasis added.)

Section
768.0415 allows unmarried dependent children to bring loss of consortium claims
based in negligence. See Zorzos v. Rosen, 467 So. 2d 305, 308
(Fla. 1985) (explaining that children in Florida have no common law right to
bring a loss of consortium claim). In pertinent part, section 768.0415 reads,
“A person who, through negligence, causes significant permanent injury to the
natural or adoptive parent of an unmarried dependent resulting in a permanent
total disability shall be liable to the dependent for damages, including
damages for permanent loss of services, comfort, companionship, and society.”

Allstate’s
waiver for loss of consortium claims, when read together with section 768.0415,
is ambiguous because it would amount to an outright falsehood. Pursuant to the
statutory language, the term “qualifying dependent(s)” as used in the waiver
means an unmarried dependent child, either natural or adopted. § 768.0415.
Because the terms of the release form demand the signatory to declare that he
does not have any “qualifying dependent(s),” signing the waiver would require
Diecidue to represent that he has no unmarried dependent children. In
Diecidue’s case, this is simply untrue — he has unmarried dependent children.

“When
an offer contains as a condition a ‘general release,’ care should be taken to
insure that the proposed release does not seek to extinguish claims that are
extrinsic to the litigation.” Nichols v. State Farm Mut., 851 So. 2d
742, 746 n.3 (Fla. 5th DCA 2003), approved, 932 So. 2d 1067 (Fla. 2006).
Although any claims for loss of consortium brought by Diecidue’s children would
be derivative of Diecidue’s own claims, the cause of action for loss of
consortium still belongs to Diecidue’s unmarried children, not Diecidue. See
United Servs. Auto. Ass’n v. Behar, 752 So. 2d 663, 665 (Fla. 2d DCA
2000) (citing Orange Cnty. v. Piper, 523 So. 2d 196, 198 (Fla. 5th DCA
1988)) (explaining that a proposal for settlement which failed to specify the
amounts offered to two plaintiffs would have deprived one of the plaintiffs,
who had a derivative claim for loss of consortium, of control as to her own
claim).

A
proposal for settlement is considered ambiguous, and therefore unenforceable,
if it is impossible for the offeree to meet its terms. See Gonzalez
v. Claywell, 82 So. 3d 1000, 1001 (Fla. 1st DCA 2011) (citing Attorneys’
Title Ins. Fund, Inc. v. Gorka, 36 So. 3d 646, 649 (Fla. 2010)). The Gonzalez
case concerned a proposal for settlement from a plaintiff to a defendant in a
negligence case. Id. at 1000. By the terms of his proposal, the
plaintiff offered to settle the case if the defendant’s auto insurer, a
nonparty, tendered a settlement check to the plaintiff in excess of the
insurer’s policy limits. Id. The defendant declined the proposal. Id.
at 1000-01. The trial court awarded the plaintiff attorneys’ fees and costs on
the basis of the rejected proposal for settlement. Id. at 1001. The
First District reversed, holding that the plaintiff’s proposal was ambiguous
because it was impossible for the defendant to meet the conditions in the
proposal.

Here,
it would have been impossible for Diecidue to comply with the
loss-of-consortium waiver because Diecidue could not honestly represent that he
had no qualifying dependents under section 768.0415. As the supreme court
stated in Nichols, rule 1.442’s particularity requirement “does not
demand the impossible” when it comes to eliminating linguistic ambiguity in
proposals for settlement. 932 So. 2d at 1079. This principle works both ways.
It is just as irrational for an offeree to demand impossible standards of
clarity from the offeror’s proposal for settlement, as it is for an offeror to
try to impose legally impossible conditions on the offeree.

We
also note that the trial court entered two duplicate final judgments against
Diecidue — one on April 21, 2015, and another on April 22, 2015. There is no
support in the record for two separate judgments against Diecidue. Allstate
concedes that the trial court inadvertently entered a duplicate judgment.
Accordingly, we direct the trial court to strike the later judgment, dated
April 22, 2015. See Sound Builders of St. Petersburg, Inc. v. Hanlon,
439 So. 2d 276, 276 (Fla. 2d DCA 1983).

As
we have in the past, we again stress that the purpose of section 768.79 and
rule 1.442 is to reduce litigation costs, not create more. See, e.g., Wolfe
v. Culpepper Constructors, Inc., 104 So. 3d 1132, 1134 (Fla. 2d DCA 2012)
(en banc). We are mindful that prevailing parties seeking recovery under
section 768.79 have expressed concerns that some litigants who initially
rejected proposals for settlement and neglected to receive a favorable verdict
at trial make post hoc attempts to conjure up ambiguities in proposals for
settlement to get a second bite at the apple. Although we do not suggest that
occurred in this case, we use this case as a vehicle to emphasize that it is
better practice for an offeree to raise any ambiguities in proposals for
settlement with the offeror before trial. This will increase the
probability that any subsequent offers may better reflect the intent of the
parties and better ensure that courts are not unnecessarily injected into
disputes that can otherwise be amicably resolved.

In
sum, Allstate’s proposal for settlement did not comply with the particularity
requirement in rule 1.442(c)(2)(D). Because a valid proposal for settlement
must comply with both rule 1.442 and section 768.79, the trial court erred in
awarding Allstate attorneys’ fees on the basis of Allstate’s proposal for
settlement. See Lucas v. Calhoun, 813 So. 2d 971, 973 (Fla. 2d
DCA 2002) (stating that compliance with the particularity requirements of rule
1.442 is mandatory). We reverse the trial court’s award of attorneys’ fees and
costs to Allstate and remand for further proceedings.

Reversed;
remanded with instructions to strike the judgment of April 22, 2015, and for
further proceedings consistent with this opinion. (LUCAS, J., Concurs.
CASANUEVA, J., Concurs with opinion.)

__________________

1Lewis
and Nowak were not present for trial.

2The
majority of this cost award was not considered when calculating the necessary
twenty-five percent margin in section 768.79(1) because the costs were not
incurred on October 5, 2012. See White v. Steak & Ale of Fla.,
Inc., 816 So. 2d 546, 551 (Fla. 2002) (“[W]e conclude that the ‘judgment obtained’
pursuant to section 768.79 includes . . . any attorneys’ fees and taxable costs
that could have been included in a final judgment if such final judgment was
entered on the date of the offer.”). Diecidue’s incurred costs on that date
were only $26,853.90. After rehearing, the trial court amended Diecidue’s award
of costs with a slightly different interest schedule, but the sums awarded to
Diecidue remained the same.

__________________

(CASANUEVA,
Concurring.) I fully concur in the majority opinion. I write to discuss a
concern caused by the proposal for settlement utilized in this matter and how
such a proposal for settlement can be utilized in other matters for the purpose
of attaining a tactical advantage rather than for the recognized purpose of ending
litigation so that scarce judicial resources may be conserved. I continue to
adhere to the belief that the purpose of rule 1.442 and section 768.79 is to
end litigation and not to create more. Lucas, 813 So. 2d at 973.

I
will first identify the proposal for settlement at issue in this case, then
review the applicable rule and statute, and conclude by suggesting a means of
analysis.

The
proposal for settlement issued in this matter by defendant Allstate sought to
resolve the litigation by offering to pay “the total amount of Fifty Thousand
and 00/100 Dollars.” In exchange for this amount, Allstate was to receive “a
complete release and dismissal with prejudice of all claims against Defendant.”

Yet,
the release attached to the proposal for settlement, when read carefully, was
more than a mere release. It also contained indemnification and hold harmless
provisions. The latter provision operates to expose the plaintiff to future
liability. Despite its breadth, the attached release’s language was clear and
not ambiguous. See Nichols, 932 So. 2d at 1079 (“The rule aims to
prevent ambiguity, not breadth.”); Saterbo v. Markuson, 41 Fla. L.
Weekly D2169 (Fla. 2d DCA Sept. 21, 2016). Therefore, it was a facially valid
proposal.

Section
768.79(2) identifies four items that are to be included in an offer of
judgment. Importantly, the statute requires that the offer be in writing and
that it set forth “its total amount.” § 768.79(2)(d). The legislative focus appears
to be on monetary conditions rather than nonmonetary conditions. The language
of the statute, enacted by the Florida Legislature, expressly identifies a
monetary calculation to determine whether fees will be awarded as a penalty for
the rejection of a good faith offer. Braaksma v. Pratt, 103 So. 3d 913,
914 (Fla. 2d DCA 2012). The statute makes no express mention of nonmonetary
conditions. As the statute is in derogation of our state’s common law, it must
be strictly construed. Kuhajda v. Borden Dairy Co. of Ala., LLC, 202 So.
3d 391, 394 (Fla. 2016).

Rule
1.442(c) requires that all offers of judgment, referred to in the rule as
proposals for settlement, be in writing, and it identifies seven items that
“shall” be contained in a proposal for settlement. It is in the language of the
rule — not the statute — that nonmonetary conditions are referenced. This
language expands the field of permissible contents that may be included in a
proposal for settlement as compared to the terms required for an offer of
judgment authorized by statute. Whether such an expansion is permissible — or
not — is beyond the scope of this concurrence and is not preserved by a trial
court ruling.

While
subsection (c)(2)(D) of the rule has language similar to its statutory counterpart,
requiring that a proposal “state the total amount of the proposal,” the rule
goes beyond the express scope of the statute. In addition to monetary
conditions, the rule requires a proposal to “state with particularity any
relevant conditions” and to “state with particularity all nonmonetary terms of
the proposal.” Fla. R. Civ. P. 1.442(c)(2)(C)-(D). It is these latter
provisions referencing nonmonetary conditions without limitation that
authorized the inclusion, in this case and others, of additional terms such as
hold harmless and indemnification provisions. These additional terms and others
like them may cause a party to reject a proposal and thereby be exposed to an
assessment of attorneys’ fees.

Interestingly,
when parsing the language of the rule and the statute, a reader will observe
the only matters permissible for the trial court’s consideration in determining
whether to impose a sanction award are the amounts recovered at trial as
compared to the amounts offered pretrial and whether the offer was made in good
faith. Neither consideration well lends itself to whether the additional
nonmonetary conditions were burdensome or were outweighed by the obligations to
be possibly incurred as compared to the economic benefits of the monetary
amounts offered.

By
permitting the inclusion of nonmonetary conditions, rule 1.442 has also had the
effect of expanding the evidentiary demands on a trial court. Case law is
replete with appellate decisions discussing whether a release was standard in
the private sector and whether the terms of the proposed release were standard.
See, e.g., Michele K. Feinzig, P.A. v. Deehl & Carlson, P.A.,
176 So. 3d 305, 309-310 (Fla. 3d DCA 2015) (discussing what is “standard in
release language”); Jessla Constr. Corp. v. Miami-Dade Cty. Sch. Bd., 48
So. 3d 127, 130-31 (Fla. 3d DCA 2010) (stating language was “typical” of that
contained in many general releases); Ledesma v. Iglesias, 975 So. 2d
1240, 1243 (Fla. 4th DCA 2008) (same); Bd. of Trs. of Fla. Atl. Univ. v.
Bowman, 853 So. 2d 507, 510 (Fla. 4th DCA 2003) (“The inclusion of agents,
employees, etc. is simply standard language in a general release that should be
considered unambiguous and should not invalidate the proposal.”).

Respectfully,
I suggest the decision-making model should be altered to further the avowed
purpose of the statute: to end litigation. To that end, the starting point of
the analysis should be framed by the parties’ operative pleadings. If the
nonmonetary conditions are not otherwise available in any party’s prayer for
relief, they cannot be imposed as nonmonetary conditions of an offer of
judgment. The exception to this rule is that a voluntary dismissal would be
available to bring the litigation to a conclusion. In this manner, neither the
trial court nor the appellate court would be required to go outside the instant
case to identify and apply “settlement norms.” It must be recalled that the
rule and statute are not mere settlement devices; they operate as a penalty and
sanction provision. See Braaksma, 103 So. 3d at 914; Attorneys’
Title Ins. Fund, Inc. v. Gorka, 989 So. 2d 1210, 1213 (Fla. 2d DCA 2008).

When
compared to monetary conditions set forth in an offer of judgment or proposal
for settlement, nonmonetary conditions are more likely to be subjected to an
ambiguity analysis or an assertion of “nitpicking.” By requiring that
nonmonetary terms have a nexus to the pending instant litigation as described
above, the likelihood of ambiguity or nitpicking is lessened if not eliminated.
Furthermore, the courts that must review the offer of judgment will be
operating within the parameters of the case as defined by the respective
parties’ pleadings, as well as within known jurisprudence. For example, to
terminate the instant litigation, a party would require a pleading that
operates to dismiss all claims with prejudice. Nothing more is required to
conclude the litigation.

Certainly,
should the parties desire a more expansive and extensive settlement, the option
of private settlement negotiation remains. Therein the parties’ settlement
considerations may resolve disposition issues by measuring present financial
considerations against the potential of future financial exposure. There is no
question that the exercise of private settlement negotiations offers more flexibility
regarding settlement terms than does the existing statute-rule combination.
There, the consideration of the benefits offered by the economic terms of the
settlement are more likely to result in a settlement than would the sanction
operation of the existing statute-rule combination.

And
it should be recognized that difficulties are created when the judiciary looks
to import the norms of settlement discussion into a jurisprudence flowing from
the operation of a sanction-driven statute-rule combination.

The
importation of standards existent in private settlement discussions plays, in
my view, no part in the analysis of the operation of Florida’s offer of
judgment statute-rule combination. Importantly, the use of nonmonetary
conditions, such as a release that is more than a release, creates an ability
to stack conditions so that the likelihood of rejection is correspondingly
increased. But the rejection resulting from the proposal still permits the
offering party to maintain the leverage of later sanctions. Where the
legislature sought a straightforward proposal based upon the acceptance or
rejection of a monetary amount, the allowance of nonmonetary conditions
otherwise unavailable through the pleadings alters the dynamics envisioned by
the legislature. Using the facts here, Mr. Diecidue’s rejection could be based
on a reluctance to acquiesce to the potential liability exposure created by the
terms of the “general release.” Others in a similar situation might well reach
an identical conclusion. The additional terms likely operate to discourage
rather than encourage settlement.

It
is my view that if the offer of judgment seeks to impose a nonmonetary
condition that has no nexus to the litigation’s prayer or prayers for relief,
such an offer of judgment does not comply with the statute and cannot support a
sanction award.

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