Attorney’s
fees — Proposal for settlement — Validity of proposal — Insurance — Action
by insured against insurer — Trial court properly denied defendant insurer’s
motion for attorney’s fees based on proposal for settlement where proposal
purported to impose liability for an indeterminate category of other claims of
third parties on plaintiff’s counsel, a non-party

FLORIDA PENINSULA INSURANCE COMPANY, Appellant, v. ANN
BRUNNER, Appellee. 3rd District. Case No. 3D15-1677. L.T. Case No. 13-20018.
June 8, 2016. An Appeal from the Circuit Court for Miami-Dade County, Barbara
Areces, Judge. Counsel: Cole Scott & Kissane and Kathryn L. Ender, for appellant.
Michael A. Nuzzo, for appellee.

(Before WELLS, SALTER and SCALES, JJ.)

(SALTER, J.) Florida Peninsula Insurance Company (FPIC)
appeals a final order denying its motion for attorney’s fees based on a
proposal for settlement. Because the proposal for settlement purported to
impose liability for an indeterminate category of “other claims of third
parties” on the appellee’s counsel, a non-party, we affirm the trial court
ruling.

The Proposal for Settlement

The proposal was made on behalf of FPIC, insurer under a
homeowner’s policy in favor of Ann Brunner, under Florida Rule of Civil
Procedure 1.442 and section 768.79, Florida Statutes (2013). The
plaintiff/insured, Ms. Brunner, did not accept the proposal for settlement.
When the jury rendered a verdict for FPIC, FPIC moved for its attorney’s fees
pursuant to the rule and statute.

The proposal for settlement included the following
requirements in paragraphs 7(a) and (b):1

(a)
This Offer of Judgment/Proposal for Settlement is to hold harmless FLORIDA
PENINSULA INSURANCE COMPANY, from any and all existing, or potentially
existing, liens or other claims which any person or entities may have on the
damages sought in the lawsuit arising out of the Plaintiff, ANN BRUNNER’s
claims or potential claims in this case.

(b)
It is agreed upon by ANN BRUNNER and his [sic] respective counsel that all
known liens, attorney charging liens or other claims of third parties, will be
satisfied and extinguished by ANN BRUNNER and his [sic] counsel.

The proposal, attached form of release, and notice of
service did not indicate any requirement for assent or execution by Ms.
Brunner’s counsel. The trial court concluded that paragraphs 7(a) and (b)
purported to require not only Ms. Brunner, but also any counsel representing
her in the case, to accept responsibility to FPIC for “other claims of third
parties.” Concerned that paragraph 7(b) “basically makes the attorney seem to
have to agree to this,” the trial court denied FPIC’s motion for attorney’s
fees. This appeal followed.

Analysis

Our standard of review applicable to the trial court’s
ruling regarding the proposal for settlement is de novo. Campbell v. Goldman,
959 So. 2d 223 (Fla. 2007). In Diamond Aircraft Industries, Inc. v.
Horowitch, 107 So.3d 362, 372 (Fla. 2013), the Supreme Court of Florida
reiterated that the requirements of Rule 1.442 and section 768.79 “must be
strictly construed because those provisions are in derogation of the common law
rule that a party is responsible for its own attorney’s fees, and because they
are penal in nature.” Id. (citing Campbell, 959 So. 2d at 226,
and TGI Friday’s, Inc. v. Dvorak, 663 So. 2d 606, 615 (Fla. 1995)).

The fatal flaw in the present case has already been
described: Paragraph 7(b) of the proposal purports to require Ms. Brunner’s
counsel to agree not only to assure that counsel’s own legal claims to the
settlement funds are extinguished, but also to assure that counsel will satisfy
and extinguish “other claims of third parties.” Yet there is no signature block
or other provision to indicate her attorney’s agreement to assume such an
open-ended liability. A proposal must be drafted so that the offeree has “the
ability to evaluate and independently act to resolve the case against her . . .
.” Paduru v. Klinkenberg, 157 So. 3d 314, 318 (Fla. 1st DCA 2014).

FPIC argues that Kee v. Baptist Hospital of Miami, Inc.,
971 So. 2d 814 (Fla. 3d DCA 2007), is controlling. In that case, however, the
Kees relied “exclusively” on State Farm Mutual Auto Insurance Co. v. Nichols,
932 So. 2d 1067 (Fla. 2006), regarding the alleged ambiguity of the proposal
for settlement. Kee, 971 So. 2d at 816. In Nichols, the issue was
whether the proposal “failed to eliminate the ambiguity regarding one of the
two claims which Nichols had.” Kee, 971 So. 2d at 816 (citing Nichols,
932 So. 2d at 1078).2

In a final paragraph, the Kee opinion rejected an
argument based on ambiguity “as to whether or not the Kees’ counsel must
guarantee payment of any hospital liens to the extent that these are satisfied
and extinguished.” Id. at 817. The present case does not concern
hospital liens on the proceeds of a personal injury settlement. The concern
shared by the appellee and the trial court in the present case is the breadth
of “other claims of third parties” which might reasonably exist and for which
counsel might purportedly be ascribed responsibility. In a homeowner’s lawsuit
against its insured for property damage such as this, such “other claims of
third parties” might include a mortgagee’s claim under an additional insured
endorsement, or a repair contractor’s mechanic’s lien claim, among others. The
appellee’s and trial court’s concerns regarding the proposal for settlement
were not unfounded.

Affirmed.

__________________

1The written proposal for settlement
appears to have been assembled by “cutting and pasting” prior word processing
forms (though not by the attorney who argued FPIC’s appeal in the present
case). Among other indicia of such a process, the first paragraph 7 (containing
the clauses identified here) is followed by paragraphs erroneously numbered 6,
7, and 8. In the proposal and attached form of release, the plaintiff in the
case, Ann Brunner, is referred to using the pronouns “he” and “his.”

2In Nichols, the two claims
were a personal injury protection (PIP) claim and an uninsured motorist claim
arising out of the same accident. “It appeared as though Nichols, in order to
settle one claim, would have had to sign a general release which would release
his second claim as well.” Kee, 971 So. 2d at 816. The issue was the
preservation of the insured’s claims against others, a concern that does not
exist in the present case.