Attorney’s fees — Proposal for settlement — Ambiguity —
Where releases in proposals for settlement are ambiguous as to whether they
would extinguish only claims against offeror or if they would also reach claims
against all other persons, including other named defendant, proposals are
invalid — No merit to argument that releases do not render proposals invalid
because evidence of parties’ negotiations shows that plaintiffs would not have
accepted proposals under any circumstances

DEANNE S. GILLETT and JOHN GILLETT, as natural father, legal guardian, and
next friend of BYRON JOHN GILLET, Plaintiffs, vs. NORMAN A. MOORE, II,
Defendant. Circuit Court, 6th Judicial Circuit in and for Pinellas County, Civil
Division. Case No. 02-009195-CI-19. December 2, 2013. Jack Day, Judge. Counsel:
Justin Johnson, St. Petersburg, for Plaintiffs. David F. Cooney, Fort
Lauderdale, for Defendant.

This cause came on to be heard on October 4, 2013, on two motions1 brought on behalf of defendant Norman A. Moore II:
the Amended Motion to Tax Costs and Fees as to plaintiff Deanne Schapell Gillett
and the Motion to Tax Costs and Fees directed at John Gillett as father and
guardian of Byron John Gillett.

It is undisputed that the proposals for settlement at issue were rejected,
and that they exceeded the jury verdict sufficiently to support the award of
costs and fees. The proposals were all conditioned upon execution of releases
that were submitted with them. In all respects pertinent, the verbiage of the
separate proposals and releases is identical. Accordingly, this order will refer
to them in the singular, as “the proposal” and “the release.”

The release states that it is in consideration of a sum of money “received
from or on behalf of Norman Moore and Empire Fire & Marine Insurance
Company, second parties.” For some ten lines, it describes what falls under the
umbrella of “second parties,” including other companies, persons, business
entities, etc. This release language, though broad, is unambiguous. The release
then goes on, however, in a separate, single-sentenced paragraph, to state that
“[t]he first party specifically releases any and all persons, natural
or corporate, responsible for the acts set forth in the lawsuit referenced
above.” (emphasis supplied)

It is well settled that a proposal for settlement should be as specific as
possible, leaving no ambiguities so that the recipient can fully evaluate its
terms and conditions. Lucas v. Calhoun, 813 So. 2d 971, 973 (Fla. 2d DCA
2002) [27 Fla. L. Weekly D453c]. A release that is a condition of the proposal
is a “nonmonetary term” of the proposal itself. State Farm Mutual Auto Ins.
Co. v. Nichols, 932 So. 2d 1067 (Fla. 2006) [31 Fla. L. Weekly S358a]. Like
the settlement proposal as a whole, the release must

Ambiguity is defined as “the condition of admitting more than one
meaning,” Nationwide Mut. Fire Ins. Co. v. Pollinger, 42 So. 3d 890 (Fla.
4th DCA 2010) [35 Fla. L. Weekly D1866d]. The release in this case is ambiguous.
One is unable to determine by looking at the document whether it will extinguish
only claims against the offeror (the “second party”), or if it also reaches
claims against “any and all persons. . .responsible for the acts set forth in
the lawsuit.” This ambiguity is particularly egregious because there was another
named defendant in the case, Enterprise Leasing.2

The release in this case is different from that in Pratt v. Weiss,
92 So.3d 851 (Fla. 4th DCA 2012) [37 Fla. L. Weekly D1079a]. In that case,
the rejected defense proposal included a release extending to “agents” of the
two corporate defendants, and the plaintiff argued that this created an
ambiguity with regard to two co-defendant physicians. However, the potential for
ambiguity was precluded in that case by the simple, unequivocal, statement that
“This Release does not in any way release other named Defendants.” There is no
such language to rescue the release proffered in this case.

Counsel for the defense argues that evidence of the parties’ negotiations,
outside the record, shows that the plaintiffs would not have accepted these
offers under any circumstances. Assuming such argument could be considered at
all, it misses the point. Ambiguity calls for objective, not subjective,
determination. The question is not whether counsel actually perceived the
proposal as ambiguous, nor whether the offeree would have accepted it under any
circumstances. The objective test in this case is to ask, “Would it be
reasonable for a litigant to fear this language could lead to a claim that the
remaining defendant, too, was discharged of liability by execution of the
release?” The undersigned concludes that the answer is “Yes.”

Because the release allows for more than one interpretation of the rights the
offeree would be giving up if it were signed, and because this confusion could
reasonably affect the offeree’s decision, the proposal is ambiguous and
therefore invalid. Accordingly, the said motions are DENIED.

__________________

1Various other post-trial motions were
considered at that time and shall be the subject of further orders after a case
management conference to identify items that may now be moot.

2Enterprise remained a defendant for some
eleven months after the initial proposals discussed herein.