THE PERILS & PITFALLS OF PROPOSALS FOR SETTLEMENT Kansas R. Gooden Boyd & Jenerette, PA

Transcription

1 THE PERILS & PITFALLS OF PROPOSALS FOR SETTLEMENT Kansas R. Gooden Boyd & Jenerette, PA HISTORY OF PROPOSAL FOR SETTLEMENTS 1972: Rule created to compliment Federal Rule : Fla. Stat enacted, but was limited to medical malpractice claims. 1986: Fla. Stat enacted to apply across the board to all claims for damages. 1989: Rule overhauled to provide greater depth of applicability. 1996: Rule modified to create a coherent framework between it and Fla. Stat : Rule expanded to specify that it applies to all proposals. 2005: Advent of joint proposals and apportionment by opinion of the Florida Supreme Court. 2007: Rule modified to conform to the Florida Supreme Court s ruling. 2010: Rule modified to remove strictly vicarious parties from apportionment requirement. 2014: Rule amended to clarify that proposals must resolve all damages. WHAT VERSION OF THE RULE/STATUTE APPLIES? Florida Statute : Version in effect at the time the cause of action accrues o Twiddy v. Roca, 677 So. 2d 387 (Fla. 2d DCA 1996). Florida Rule of Civil Procedure 1.442: Version in effect at the time the offer is made o Stern v. Zamudio, 780 So. 2d 155 (Fla. 2d DCA 2001) INTERPLAY BETWEEN RULE AND STATUTE Florida Statute is implemented by Florida Rule of Civil Procedure o Audiffred v. Arnold, 161 So. 3d 1274, 1277 (Fla. 2015). However, the tail should not wag the dog. o We decline to invalidate Kuhajda's offers of judgment solely for violating a requirement in rule that section does not require. The procedural rule should no more be allowed to trump the statute here than the tail should be allowed to wag the dog. A procedural rule should not be strictly construed to defeat a statute it is designed to implement. Kuhajda v. Borden Dairy Co., 202 So. 3d 391, (Fla. 2016) FLORIDA STATUTE SECTION TECHNICAL REQUIREMENTS (2)... An offer must: (a) Be in writing and state that it is being made pursuant to this section. (b) Name the party making it and the party to whom it is being made. (c) State with particularity the amount offered to settle a claim for punitive damages, if any.

2 (d) State its total amount. The offer shall be construed as including all damages which may be awarded in a final judgment , Fla. Stat. (2017) FLORIDA RULE OF CIVIL PROCEDURE TECHNICAL REQUIREMENTS (c) Form and Content of Proposal for Settlement. (1) A proposal shall be in writing and shall identify the applicable Florida law under which it is being made. (2) A proposal shall: (A) name the party or parties making the proposal and the party or parties to whom the proposal is being made; (B) state that the proposal resolves all damages that would otherwise be awarded in a final judgment in the action in which the proposal is served, subject to subdivision (F); (C) state with particularity any relevant conditions; (D) state the total amount of the proposal and state with particularity all nonmonetary terms of the proposal; (E) state with particularity the amount proposed to settle a claim for punitive damages, if any; (F) state whether the proposal includes attorneys' fees and whether attorneys' fees are part of the legal claim; and (G) include a certificate of service in the form required by rule (3) 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 (4) Notwithstanding subdivision (c)(3), when a party is alleged to be solely vicariously, constructively, derivatively, or technically 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. Acceptance by any party shall be without prejudice to rights of contribution or indemnity. Fla. R. Civ. Pro (2017). STRICT CONSTRUCTION In general, Florida Statute and Florida Rule of Civil Procedure are in derogation of common law and must be strictly construed. o Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So. 2d 276, 278 (Fla. 2003).

3 However, this rule of construction should not eviscerate the legislature s policy choice. When reviewing offers of judgment, courts should use reason and common sense and interpret the offer as a whole to avoid unreasonable results. o Jacksonville Golfair, Inc. v. Grover, 988 So. 2d 1225, 1226 (Fla. 1st DCA 2008) TREND MOVING AWAY FROM STRICT CONSTRUCTION o Kuhajda v. Borden Dairy Co., 202 So. 3d 391, 395 (Fla. 2016) SERVICE OF PROPOSALS FOR SETTLEMENT Rule specifically references Florida Rule of Civil Procedure o (G) include a certificate of service in the form required by rule 1.080(f). Florida Rule of Civil Procedure Every pleading subsequent to the initial pleading, all orders, and every other document filed in the action must be served in conformity with the requirements of Florida Rule of Judicial Administration Florida Rule of Judicial Administration All documents required or permitted to be served on another party must be served by , unless the parties otherwise stipulate or this rule otherwise provides. o Must attached pdf of document or a link to access it o Subject line - SERVICE OF COURT DOCUMENT, Case #, Case Name (as of Jan 1st) o Body of Court, case number, name of the initial party on each side, title of each document served, and name and telephone of person required to serve document District Split Exists as to whether service can invalid PFS

4 UPDATE ON PROPOSAL FOR SETTLEMENT CASE LAW CASE LAW FROM OCTOBER 2016 TO PRESENT JOINT PROPOSALS INCLUSION OF INDIVIDUAL DEFENDANTS IN RELEASE INCLUDED AS PART OF PFS TO CORPORATE DEFENDANT DID NOT RENDER IT A JOINT PROPOSAL: The Zodiac Group, Inc. v. GrayRobinson, P.A., 2017 WL (Fla. 3 rd DCA. Aug. 9, 2017). GrayRobinson brought an action against a former corporate client (Zodiac) and its President (David Felger) and its Vice President (Daniel Felger) for unpaid attorney's fees. The clients appealed an award of attorney s fees based upon three proposals for settlement. One offer was to Zodiac for $140, and included a release of all the defendants had it been accepted. The offer to David Felger was for $40,000.00, and included a release limited to David Felger. The offer to Daniel Felger was for $60,000.00, and included a release limited to Daniel Felger. GrayRobinson prevailed in the case and were awarded attorney s fees pursuant the Proposals for Settlement. The Third DCA rejected Zodiac and the Felgers argument that the offers were unclear, finding that the proposals were separate proposals, not joint proposals, made to each defendant, individually, to evaluate and settle with GrayRobinson irrespective of the other parties' decisions even though the offer to Zodiac, if accepted, would have also released the individual defendants. PFS REQUIRING JOINT DISMISSAL NOT AMBIGUOUS: Sherman v. Savastano, 220 So. 3d 441 (Fla. 4 th DCA 2017) The plaintiff, Paul Savastano, sued for injuries he sustained in a motor vehicle accident. His wife also filed a loss of consortium claim, but dropped her claim shortly thereafter. Later the defendant served a proposal for settlement on the plaintiff, offering $200,000 to settle. The offer provided that [t]he parties will execute a joint stipulation for dismissal with prejudice of the action. The plaintiff did not accept the offer within the statutory time frame and the matter proceeded to trial. Plaintiff's total recovery after trial was less than 75% of the amount offered by defendant and the defendant moved for attorney's fees pursuant to his proposal for settlement. The plaintiff argued that defendant's proposal was unenforceable because it was ambiguous and did not strictly comply with the specifications outlined in Florida Rule of Civil Procedure Specifically, plaintiff argued that defendant's proposal was ambiguous because it was contingent on the execution of a joint stipulation for dismissal even though there was only one plaintiff and failed to provide the language of the stipulation of dismissal. On appeal, the Fourth DCA found that the dismissal condition contained in the defendant's proposal was sufficiently clear to allow the plaintiff to make an informed decision without requiring additional clarification. Since this was a one count, one plaintiff negligence lawsuit, there was no question as to what a dismissal could or would entail. The court found that the only possibility of ambiguity concerned whether the action would be dismissed with prejudice, and the

5 language in the proposal clarified that the dismissal would be with prejudice. As stated by the Court, the settlement proposal [was] sufficiently clear and definite to allow the [plaintiff] to make an informed decision without needing clarification. JOINT OFFER UNENFORCEABLE: Bradfield v. Mid-Continent Casualty Co., 2017 WL (11th Cir. June 7, 2017). Mid-Continent issued commercial general liability insurance policies to Winfree Homes, Inc., and Horgo Enterprises, Inc. A third entity, Horgo Signature Homes, Inc., used Winfree and Horgo Enterprises as contractors, which Horgo Signature failed to disclose in its contract to build a home for Joseph and Patricia Bradfield. The Bradfields' home was rife with construction defects, the majority of which were attributable to work performed by subcontractors used by Winfree and Horgo Enterprises. After the Bradfields sued Winfree and Horgo Signature in a Florida court, Winfree and Horgo Signature notified Mid-Continent of the action, but it denied coverage and refused to provide a defense. The parties settled the action. The Bradfields agreed to release all claims against Winfree, Horgo Signature, and Horgo Enterprises, and Winfree and Horgo Signature, in exchange, agreed to be held jointly and severally liable for $696,108 and to assign their putative claims against Mid- Continent to the Bradfields. The Bradfields filed a complaint in a Florida court against Mid-Continent, which removed the action to the district court. Mid-Continent served the Bradfields with a joint offer of judgment to resolve[ ] all claims that the Bradfields asserted or could have asserted against [Mid-Continent] in connection with the complaint, and under the Horgo Enterprises, Inc. and Winfree Homes, Inc. policies of insurance issued by [Mid-Continent]. Mid-Continent offered to pay $7,500 that could be split equally by the Bradfields or in any other matter [sic] they see fit. In exchange, Mid- Continent demanded a full and complete release of all claims that the Bradfields had, have, or that they could have asserted against Horgo Enterprises, Winfree, and/or [Mid-Continent] and a full and complete satisfaction of any and all Final Judgment(s)/Consent Judgments they jointly obtained against Horgo Signature Homes, Inc. and/or Winfree. The 11 th Circuit found that the district court did not abuse its discretion when it denied Mid- Continent attorney's fees because its offer of judgment was unenforceable because Mid-Continent conditioned its offer of settlement on the Bradfields' mutual acceptance of $7,500 and a joint release of all their claims. Mid-Continent argued that it could make a single offer because the Bradfields sought to recover on a jointly-held consent judgment, but the 11 th Circuit held that Attorneys Title Insurance Fund, Inc. v. Gorka, 36 So.3d 646 (Fla. 2010) established a bright line rule under Rule 1.442(c)(3). In particular, the Court found Gorka held that an offeror must make independent offers of judgment to multiple offerees, and this rule equally applies whether the case involves only two plaintiffs with a personal relationship or multiple parties absent a close personal or financial relationship. Gorka, 36 So. 3d at 652. Under this bright line rule, the 11 th Circuit found that Mid-Continent was not entitled to attorney s fees. IS LANGUAGE OF RELEASE OR PFS/OJ IMPERMISSABLY BROAD? TYPICAL SECOND PARTY NOT TOO BROAD. Costco Wholesale Corp. v. Llanio- Gonzalez, 213 So. 3d 944 (Fla. 4 th DCA 2017).

6 In this case, the trial court denied the defendant's motion for attorney's fees because: [E]ach of Defendant's Proposals for Settlements [are] ambiguous and unenforceable as contended by Plaintiffs in their Response, because the Proposals for Settlement contain narrow language offering to release only the Defendant... and release only claims arising out of the facts and circumstances referred to in this lawsuit, while the proposed Releases attached to the Proposals for Settlement contain broader language releasing individuals or entities in addition to [the defendant] and releasing claims or potential claims more than and broader than only the claims related to the facts and circumstances in this lawsuit. In reversing, the Fourth DCA held that the trial court s finding the proposed Releases attached to the Proposals for Settlement contain broader language releasing individuals or entities in addition to [the defendant], was inconsistent with its precedent in Board of Trustees of Florida Atlantic University v. Bowman, 853 So.2d 507 (Fla. 4 th DCA 2003) in which the following language was found expansive but not ambiguous: [S]ingular and plural, heirs, legal representatives, agents, employees, attorneys, and assigns of individuals and the subsidiaries, affiliates, parent corporations, and each of their respective present and former officers, agents, employees including, but not limited to, shareholders, directors, attorneys, insurers, sureties, successors and assigns of corporations, agencies, or political bodies, wherever the context so admits or requires. Therefore, although the releases' description of the Second Parties was more expansive, it was typical of other general releases and is clear and unambiguous. ADDITION OF OR AVAILABLE TO DESCRIBE CLAIMS DID MAKE OFFER TOO BROAD. Johnson v. Thor Motor Coach, Inc., 2016 WL (M.D. Fla. Nov. 23, 2016). The plaintiffs argued that the offers of judgment were defective, unenforceable, and void because the breadth of the requested release was ambiguous. Plaintiffs' argument focused on the language in paragraphs 1, 2 and 3 of each Offer: 1. Defendant Thor hereby offers to fully and finally settle all claims pled by or available to Plaintiff Michael Johnson against Thor in the operative Complaint, by paying him a total of Eight Thousand, Seven Hundred Forty Eight and 00/100 Dollars ($8,748.00). 2. Plaintiff Michael Johnson's acceptance of this Proposal will fully settle, terminate, discharge, and dismiss with prejudice all elements of the claims, causes of action, damages, relief, costs, including the attorneys' fees claim, which are pled or available to him against Thor in this action. Plaintiff Michael Johnson has not pled a claim for punitive damages against Thor, but this Proposal is intended to resolve any such claim to the extent it might exist. 3. Should Plaintiff Michael Johnson accept this Proposal, no actual judgment will be entered against this Defendant. Rather, within 5 business days of his receipt of

7 the above referenced settlement proceeds, Plaintiff Michael Johnson shall dismiss with prejudice all elements of the claims, causes of action, damages, costs, and attorney's fees pled or available against this Defendant. (emphasis added). The plaintiffs argued that based on the use of the phrases or available to and or available against, it was unclear whether the Defendant was attempting to procure a release only of those claims raised in this action or whether Defendant sought to also resolve claims which Plaintiffs did not raise in this action, of which Plaintiffs may not have been aware at the time the proposals were tendered, and for which Plaintiffs would have needed additional counsel to assess the value thereof in order to determine the fairness of Defendant's offers. The District Court disagreed and found that a plain reading of each offer revealed that the Plaintiffs' contention that the offers were ambiguous is misplaced, stating: While the phrase in paragraph 1, or available to may be broad, it is clearly limited by the subsequent phrase in the operative Complaint. Similarly, while paragraph 2 contains the same language ( or available to ), it is clearly limited by the final phrase of the sentence: in this action. Finally, while paragraph 3 suggests that Plaintiff dismiss with prejudice all claims, including those available against this Defendant, a Plaintiff can't dismiss a claim in a lawsuit that it hasn't raised. Especially in light of the limiting language noted, the Court submits that as a whole, each offer is sufficiently clear and definite as to Defendant's intent to resolve each Plaintiff's individual claims in this action. Likewise, the Court rejected Plaintiffs' argument (relying on paragraph 3 of the offers), that the offers are illusory because if accepted they would have required each Plaintiff to dismiss the claims of the other. It found there was no support for their apparent contention that each Plaintiff's ability to accept the offer was contingent on the other's same acceptance: The language of paragraph 3 in no way makes the acceptance by the plaintiff to whom the offer was directed contingent on the acceptance of the other. Indeed, each offer expressly limits the offer to each Plaintiff individually and does not even mention their spouse's name. PFS AMBIGUOUS WHEN RELEASE LANGUAGE WAS BROADER: Dowd v. GEICO General. Ins. Co., 221 So. 3d 772 (Fla. 3 rd DCA 2017). The proposals for settlement in this case provided in pertinent part: The Defendant, GEICO GENERAL INSURANCE COMPANY, claims this proposal is attempting to resolve all of the claims for affirmative relief made by the Plaintiff, KEVIN DOWD, as against Defendant, GEICO GENERAL INSURANCE COMPANY, in the above-styled action and all claims for affirmative relief which could have been raised as compulsory claims by KEVIN DOWD to this action, as well as any current counter-claims. However, the releases attached to each proposal for settlement contained noticeably broader language: [Geico] is released on account of and from any or all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments executions, claims demands and liability whatsoever, including any and all claims for personal injuries, medical expenses or

8 property damage, in law or equity, which against [Geico], [plaintiff] ever had, now has, or may have in the future (including any claim for wrongful death), or which his heirs, executors/administrators, successors/assigns, statutory survivors, and/or personal representatives, hereafter can, shall, or may have, arising on account of or in connection with any of the issues that were raised or could have been raised in Case Number: CA 01 now pending in the Circuit Court of the Eleventh Judicial Circuit of Florida in and for Miami, Dade County, Florida as well as any future action arising on account of or in connection with the accident which allegedly occurred on or about March 27, [Plaintiff] understands and agrees that in accepting the sum stated above he does so in full settlement of any and all claims that he now has or which he may have in the future, or which might accrue to him or his heirs, statutory survivors, personal representatives, executors/administrators, successors/assigns, as against any of the herein Releasee [Geico] for damage or injuries as a result of or in connection with the incident described above, as well as for all consequences, effects, and results of any such injury or damages, whether the same is now known or unknown, expected or unexpected, or have already occurred or developed, or may be latent, or may in the future occur or develop. A discrepancy between a limited proposal of settlement and a much broader release, as in this case, creates the type of ambiguity that runs afoul of the particularity requirement in the Rule. Because the plaintiff may still have had a viable PIP claim against Geico, it was unclear under the terms of the releases whether such a claim was intended to be included among those being released. While it is not a compulsory claim as set forth in the proposals, it may fall under the umbra of the broader release language. Accordingly, the plaintiff's decision to accept or reject the proposals was reasonably affected by the ambiguity created among the documents AMBIGUITY AMBIGUITY EXISTS WHERE RELEASE REQUIRES PARTY TO MAKE A FALSE STATEMENT. Diecidue v. Lewis, 2017 WL (Fla. 2d DCA. Feb. 10, 2017). In Diecidue, the Court found that the Release attached to the PFS included a provision concerning the waiver of loss of consortium claims which rendered the PFS ambiguous. In particular, the release included the following language: 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 , Florida Statutes (2007). However, Mr. Diecidue did have unmarried dependent children. Section allows unmarried dependent children to bring loss of consortium claims based in negligence. The Court found that Allstate's waiver for loss of consortium claims, when read together with section , was 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. Because the terms of the release form demanded the Plaintiff to declare that he does not have any qualifying dependent(s), signing the

9 waiver would require Diecidue to represent that he has no unmarried dependent children which in Diecidue's case was untrue. Also, the Court found that it would have been impossible for Diecidue to comply with the loss-ofconsortium waiver because Diecidue could not honestly represent that he had no qualifying dependents under section The Court found that it was improper for an offeror to try to impose legally impossible conditions on the offeree. AMBIGUITY DOES NOT EXIST BASED UPON ONLY TWO PARAGRAPHS WHEN RELEASE IS READ AS A WHOLE. Kiefer v. Sunset Beach Investments, LLC, 207 So. 3d 1008 (Fla. 4 th DCA 2017). Sunset Beach Investments, LLC, filed a lawsuit asserting claims of professional negligence against Kiefer, Kimley Horn, and two licensed engineers. While that case was pending, Kiefer served a proposal for settlement on Sunset Beach pursuant to Florida Rule of Civil Procedure 1.442, and Fl St At the same time, each of the other co-defendants served separate proposals for settlement on Sunset Beach. Sunset Beach did not accept any of the proposals for settlement. The issue in this appeal arose from the next two paragraphs of the Kiefer release. Unlike each of the other paragraphs of the proposal for settlement and release, the fifth and sixth paragraphs of the release were not specifically limited to Kiefer and Sunset Beach. Instead, they were silent as to the defendant to which they applied. The fifth paragraph stated that the release covers any and all claims for attorney's fees, costs and premiums, as a result of the incident and matters set forth in the lawsuit. The sixth paragraph, as with many standard release forms, stated that Sunset Beach released all claims that related to the lawsuit. Finally, the remaining two paragraphs of the release were both specifically limited to Sunset Beach and Kiefer. The court found no ambiguity with the proposal for settlement or the release, with the exception of paragraphs five and six of the release. With regard to those paragraphs, the trail court stated: And when I'm reading the proposal and the release agreement, I have trouble when I get to page 2 because the two middle paragraphs on page 2 of the release do not relate to Mr. Kiefer, as every other paragraph specifically and very carefully does relate to Mr. Kiefer, in all caps, no less. Based upon the failure to include Kiefer's name in those two paragraphs, the trial court found the release to be ambiguous and the proposal for settlement unenforceable. On appeal, the Fourth DCA disagreed, looking instead to the entirety of a proposal for settlement when determining whether it is clear and definite, and we do so without nitpicking in a search for ambiguity. Reviewing the proposal for settlement served by Kiefer within that framework, we do not believe it to be ambiguous. All nine paragraphs of the proposal for settlement clearly relate solely to Kiefer and Sunset Beach. In the attached release, there are two paragraphs that do not include Kiefer's name. However, those paragraphs are in between other paragraphs of the release that state: (1) Kiefer and Sunset Beach wish to resolve all claims; (2) Kiefer will pay a sum to Sunset Beach in exchange for his dismissal; (3) Sunset Beach would release Kiefer; and (4) Sunset Beach would file a dismissal as to Kiefer. When read as a whole, the release related to Sunset Beach and Kiefer, and not the other co-defendants.

10 NOT AMBIGUOUS TO REFER TO DEFENDANTS. Atlantic Civil, Inc. v. Swift, 2017 WL (Fla. 3 rd DCA Mar. 1, 2017). During litigation in the underlying lawsuit, Atlantic Civil served an offer of settlement to Swift and Key Haven, which stated in pertinent part: Plaintiff Atlantic Civil, Inc. ( ACI ), by and through undersigned counsel and pursuant to Section , Florida Statutes and Rule 1.442, Florida Rules of Civil Procedure, makes the following proposal for settlement to defendants Edwin O. Swift, III ( Swift ) and Key Haven Estates, LLC ( Key Haven ) (collectively Defendants ), the terms of which are as follows: 1. Nature of Resolved Claims. ACI proposes to resolve all claims brought by ACI against Defendants in the above-captioned action, including all claims arising from or connected to this action which, if not brought herein, would be barred by final judgment herein, including but not limited to, any claims for punitive damages. 2. Amount of Proposal. Without admitting or conceding in any way that the value of the property disputed in the above-captioned action is less than the amount demanded in ACI's amended complaint, and in the interest of avoiding the expense and inconvenience of litigation, ACI proposes that Defendants pay ACI the total amount of FIFTY THOUSAND DOLLARS ($50,000.00) apportioned as follows: from Swift to ACI, the amount of TWENTY FIVE THOUSAND DOLLARS ($25,000.00), and from Key Haven to ACI, the amount of TWENTY FIVE THOUSAND DOLLARS ($25,000.00), in full and complete settlement of the claims identified in paragraph (1) above Nonmonetary or Other Conditions. This proposal is conditioned on the mutual exchange of general releases (attached hereto as Exhibits A and B) [ [ 1] as described in this paragraph. ACI will dismiss this action with prejudice and execute a general release, in favor of Defendants, of the claims identified in paragraph (1) above. Likewise, Defendants will execute a general release, in favor of ACI, of all counterclaims arising from or connected to this action which, if not asserted herein, would be barred by final judgment in this matter. 6. Acceptance or Rejection of Proposal. This proposal shall be deemed rejected unless Defendants accept it by delivering written notice of acceptance to ACI within thirty (30) days following the service hereof, calculated according to Rule 1.442, Florida Rules of Civil Procedure. If Defendants do not timely accept this proposal, Swift and/or Key Haven may be liable for reasonable attorney's fees and costs incurred by ACI from the date of filing this proposal pursuant to Section , Florida Statutes. On appeal, the Third DCA stated that in interpreting the settlement proposal, the intention of the parties must be determined from examination of the whole contract and not from separate phrases or paragraphs. Looking at the complete language of the Proposal for Settlement and the attached general release form to be signed by Swift and Key Haven, the Court found no requirement that both defendants must agree in order to effectuate the settlement. As stated by the Court: While in some instances the Swift and Key Haven are referred to as defendants, plural, this is simply a matter of convenience. The settlement amount is apportioned between the two defendants and the

11 general release form allows for the defendants to sign separately. Thus, the proposal meets the Nichols requirement that the proposal be sufficiently clear and definite to allow each offeree to make an informed decision as to whether to settle. Reading the references to defendants to create an ambiguity would involve the type of nitpicking which the Anderson court expressly warns against. PFS AMBIGUOUS WHERE EVICTION CLAIM EXISTED. South Florida Pool & Spa Corp. v. Sharpe Inv. Land Tr. No. J, 207 So. 3d 301, (Fla. 3 rd DCA 2016) Alleging that its tenant had failed to pay monthly rent, Landlord, on January 20, 2010, sued Pool and Spa for eviction, and also sued Sanchez who had executed an unconditional guaranty of Pool and Spa's lease obligations. During the pendency of the case, a fire erupted in Pool and Spa's leased premises in February of Landlord filed an amended complaint, adding an eviction count based on Pool and Spa's failure to maintain insurance as required by the lease. The amended complaint also included damages claims based on Pool and Spa's alleged lease breaches, and a negligence count against both defendants seeking damages resulting from the fire. Landlord pled entitlement to attorney's fees in each count. Having already decided to sever Landlord's eviction claims from its damages claims, the trial court, in November of 2010, entered a summary judgment of eviction in Landlord's favor, determining that Pool and Spa had breached the lease agreement by its failure to procure adequate insurance. Pool and Spa appealed that summary judgment to the Third DCA. During the pendency of that appeal, Pool and Spa served a proposal for settlement on the Landlord pursuant to section and Rule Pool and Spa's proposal offered $15, to settle Landlord's damages claims. The proposal was conditioned upon Landlord executing the general release attached to the proposal. Landlord did not accept the proposal for settlement. After conducting a trial on Landlord's damages claims in November of 2014, the trial court entered a final judgment in Pool and Spa's favor, involuntarily dismissing all of Landlord's damages claims. Pool and Spa timely moved for fees pursuant to its January 2012 proposal for settlement which was denied The Landlord argued that the general release attached to the proposal purported to release Pool and Spa from Landlord's fee claims associated with the eviction, while the language of the actual proposal purports to resolve all claims with the exclusion of the Eviction Claims. The Landlord argued that this inconsistency creates an ambiguity rendering Pool and Spa's proposal unenforceable. In the body of Pool and Spa's proposal, under the heading Conditions, the following appears: Upon acceptance of this Offer/Proposal, Plaintiff... shall enter into a Stipulation dismissing with prejudice all the pending claims, with the exclusion of the Eviction Claims which are currently pending on appeal, against Defendants... and shall execute the General Release marked as Exhibit A to this Proposal. Under the heading Attorney's fees the body of the proposal read: This Offer includes attorneys' fees which are not part of the Negligence claim. The general release attached as exhibit A to Pool and Spa's proposal, reads in relevant part: This Release covers any and all claims of the [Landlord] for compensatory damages, whether past, present, or future, and any and all other claims of consequential damages and expenses, including attorney's fees which have arisen, arise, or which may hereafter arise out of the matters which were alleged in, or could have been alleged in [the case]...

12 The Third DCA agreed with the trial court that it was unclear from reading both the proposal language and the language of the attached general release, whether Pool and Spa's $15, was meant to include Landlord's attorney's fee claim associated with its eviction, or whether the Landlord's fee claim was excepted from Pool and Spa's offer. PLAINTIFF S OFFER NOT AMBIGUOUS AS TO CONSORTIOM CLAIM AND PLAINTIFF NOT REQUIRED TO HAVE EACH DEFENDANT SEPARATELY LISTED ON VERDICT FORM. Anderson v. Hilton Hotels Corp., 202 So. 3d 846 (Fla. 2016). In this negligent security case, the plaintiff Troy Anderson proposed separate offers of settlement to Hilton, W2007, and Interstate in October He made a separate offer to SecurAmerica in March Anderson offered to settle his claims with Hilton for $650,000, W2007 for $100,000, Interstate for $650,000, and SecurAmerica for $300,000. The offer made to Hilton, in its entirety, stated: PROPOSAL FOR SETTLEMENT ON BEHALF OF PLAINTIFF, TROY [ANDERSON], PURSUANT TO RULE Plaintiff, TROY ANDERSON, by and through his undersigned attorneys, hereby serves his Proposal for Settlement, pursuant to Rule of the Florida Rules of Civil Procedure, to Defendant, HILTON HOTELS CORPORATION, a foreign corporation, doing business as EMBASSY SUITES ORLANDO AT INTERNATIONAL DRIVE AND JAMAICAN COURT, also doing business as HILTON WORLDWIDE, and states in support thereof as follows: 1. This Proposal for Settlement is made pursuant to Florida Statute , and is extended in accordance with the provisions of Rule Fla. R.Civ.P. 2. This Proposal for Settlement is made on behalf of Plaintiff, TROY ANDERSON ( PLAINTIFF ), and is made to Defendant, HILTON HOTELS CORPORATION, a foreign corporation, doing business as EMBASSY SUITES ORLANDO AT INTERNATIONAL DRIVE AND JAMAICAN COURT, also doing business as HILTON WORLDWIDE ( HILTON ). 3. This Proposal for Settlement is made for the purpose of settling any and all claims made in this cause by PLAINTIFF against HILTON. 4. That in exchange for SIX HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS ($650,000.00) in hand paid from HILTON, PLAINTIFF agrees to settle any and all claims asserted against HILTON, as identified in Case Number 2009 CA O, brought in the Circuit Court in and for Orange County, Florida. 5. This Proposal for Settlement is inclusive of all damages claimed by PLAINTIFF, including all claims for interest, costs, and expenses and any claims for attorney's fees. Other than the specifically designated Respondent and the specific amount proposed, the offers to Hilton, W2007, Interstate, and SecurAmerica were identical. Additionally, in October 2011, Paula Anderson made separate offers to each of the Respondents to settle her loss of consortium claim. Her offers were $15,000 from Hilton, $15,000 from W2007, $25,000 from Interstate, and $25,000 from SecurAmerica. Her offers were identical to those of Anderson, other than the name of the specifically identified Plaintiff, the specifically identified Respondent, and the specific amount proposed. Prior to trial, however, Paula voluntarily dismissed

13 her cause of action without prejudice, and Toy Anderson proceeded against each of the respective Respondents alone. At trial, attorneys from a single legal firm represented Hilton, W2007, and Interstate, while attorneys from a separate firm represented SecurAmerica. Throughout both trials, for ease of reference, Hilton, W2007, and Interstate were collectively referred to as Embassy Suites. Near the close of the trial, when discussing jury instructions and closing statements, an attorney from the single firm representing Hilton, W2007, and Interstate stated: [W]e believe it would be appropriate, and certainly less cumbersome throughout the instructions to simply talk about our client as Embassy Suites, rather than the larger definition that they use, or reference they use throughout their instructions, referring to the three defendants as one and the same. All parties to the suit agreed to the following jury instruction: Members of the jury, you can assume, for purposes of your deliberation, that Interstate Hotel and Resorts, Inc., Hilton Hotels Corporation, and W2007 Equity Inns Realty, LLC, are considered one and the same. These defendants will be referred to in the jury instructions and verdict form as Embassy Suites. The jury found Embassy Suites and SecurAmerica to be negligent for Anderson's injuries and that Anderson was not comparatively negligent. The jury further found that Embassy Suites was 72% negligent, and SecurAmerica was 28% negligent. Ultimately, the jury found that Anderson sustained a total of $1,702,066 in damages. The trial court entered judgment in favor of Anderson and against Hilton, W2007, and Interstate collectively hereinafter referred to as EMBASSY SUITES pursuant to the Verdict form agreed to by Plaintiff and all Defendants in the amount of $1,225,487.52, and against SecurAmerica in the amount of $476, Troy Anderson then sought attorneys' fees pursuant to section and Rule The trial court denied Anderson's motion, finding that Anderson failed to request a verdict assigning separate findings of fault among Hilton, W2007, and Interstate. On appeal, Anderson argued that he was entitled to attorneys' fees pursuant to section and Rule because his offers of settlement satisfied the requirements of the statute and rule. However, the district court disagreed, concluding that the term PLAINTIFF in Anderson's offer could reasonably be interpreted to include both Anderson and his wife, Paula. The Fifth DCA also faulted the Plaintiff s failure to request a differentiated verdict stating the liability of the separate Embassy Suite defendants. However, the Florida Supreme Court found that the reading of Anderson's offer as espoused by the Defendants, the trial court, and the Fifth District was unreasonable and in contravention of its direction in Nichols. On the issue of whether proposal was ambiguous as to whether it included the consortium claim the Supreme Court noted that: The proposal clearly and consistently used the singular term PLAINTIFF, which was defined as Troy Anderson in Paragraph 2. Moreover, Paragraph 3 indicated that each proposal was designed to settle any and all claims of PLAINTIFF [Troy Anderson] against [RESPONDENT], which by its clear terms defined that the only parties to be affected by acceptance of the proposal would be Troy Anderson and the designated Respondent. Finally, the offer made by Troy Anderson had no reference to Paula Anderson or her loss of consortium claim, which Anderson was not obliged to address in his claim. See Miley, 171 So.3d at On this point, we note that Paula Anderson made her own separate, nearly simultaneous offers to

14 each of the Respondents. If a party receives two simultaneous offers from two separate parties, common sense dictates that the offeree should possess all the information necessary to determine whether to settle with one or both of the offerors. See Nichols, 932 So.2d at 1079 ( [T]he settlement proposal [must] be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification. ). In reading the entirety of Anderson's proposals, the only reasonable interpretation is that Troy Anderson offered to settle only his claims with each Respondent in his offer. On the issue of whether a differentiated verdict was required, the Supreme Court first noted that at the very least, Anderson's offer to SecurAmerica alone created a right to attorneys' fees upon entry of judgment against SecurAmerica: Anderson proposed to settle his claims against SecurAmerica for $300,000 and obtained a judgment against SecurAmerica for $476,578.48, which is approximately 159% of Anderson's offer well above the 25% threshold in section (6)(b). Moreover, the Supreme Court found that Troy Anderson was also entitled to attorneys' fees based on his separate offers to Hilton, W2007, and Interstate. Anderson offered to settle with Hilton for $650,000, with W2007 for $100,000, and with Interstate for $650,000. The trial court entered a judgment against these defendants in the amount of $1,225,487.52, which is approximately 189% of the offers Anderson made to Hilton and Interstate, and approximately 1225% of the offer made to W2007. As noted by the Supreme Court, the only way that these offers could not satisfy the statutory requirement would be if the offers were to be aggregated which is not allowed under a strict construction of section Thus, Troy Anderson's offers to Hilton, W2007, and Interstate complied with the requirements of section and Rule The fact that the judgment entered by the trial court did not specify that Hilton, W2007, and Interstate were jointly and severally liable to Anderson for this judgment did not otherwise destroy this entitlement. The Supreme Court also rejected the argument of the Respondents that Troy Anderson waived this right by agreeing with the defendants' proposal to refer to Hilton, W2007, and Interstate collectively as Embassy Suites during trial because nothing in the offer of judgment statute or rule requires a plaintiff to obtain a judgment against a specific defendant where there are multiple parties to the action; the plaintiff must simply obtain a judgment that is at least 25% greater than the offer. The fact that all parties agreed to refer to Hilton, W2007, and Interstate as Embassy Suites collectively for the purposes of minimizing juror confusion did not affect Troy Anderson's entitlement to attorneys' fees in this case when that entitlement was contingent only upon a satisfactory offer of settlement and judgment that is at least 25% greater than that offer. WHAT IS A GOOD FAITH OFFER? NOMINAL OFFER CAN BE IN GOOD FAITH WHERE THE OFFEROR HAS A REASONABLE BASIS TO BELIEVE THAT ITS EXPOSURE TO LIABILITY IS MINIMAL OR NOMINAL: Taylor Engineering, Inc. v. Dickerson Florida, Inc., 221 So. 3d 719 (Fla. 1 st DCA 2017). The First DCA was asked to resolve an apparent inconsistency in the good faith standard for an award of attorney s fees pursuant to In noting that the case law was not actually inconsistent, the Court reiterated that a nominal offer is made in good faith where the offeror has a reasonable basis to believe that its exposure to liability is minimal. In explanation, the Court

15 traced the history of the apparent inconsistency in the good-faith standard through Arrowood Indemnity Co. v. Acosta, Inc., 58 So.3d 286 (Fla. 1st DCA 2011), and General Mechanical Corp. v. Williams, 103 So.3d 974 (Fla. 1st DCA 2012). The Arrowood court noted [i]n the context of a nominal offer of judgment, this court has held that where the offeror has a reasonable basis to believe that exposure to liability is minimal, a nominal offer is appropriate. Arrowood, 58 So.3d at 289 (emphasis supplied). However, the First DCA had also held in General Mechanical that a reasonable basis [for a nominal offer] exists only where the undisputed record strongly indicates that the defendant had no exposure. Gen. Mech., 103 So.3d at 976 (emphasis supplied). While at first glance, it would appear that the General Mechanical court would disqualify a nominal offer from the offer of judgment statute unless the defendant had no exposure at all to liability, whereas the Arrowood court would permit a nominal offer under the statute as long as the defendant's exposure to liability could be characterized as minimal, after further examination, the Court found that the relevant case law revealed no such inconsistency. In particular, the Court found that Event Services America, Inc., v. Ragusa, 917 So.2d 882 (Fla. 3d DCA 2005), upon which General Mechanical relied, can be reasonably read as using the phrase no exposure as synonymous with nominal exposure. The Court cites cases from the other Districts adopting a nominal exposure rather than a no exposure standard. GOOD FAITH IN THE MAKING OF AN OFFER OF JUDGMENT REQUIRES THE OFFEROR HAVE SOME REASONABLE FOUNDATION ON WHICH TO BASE AN OFFER. : Berman v. Target Co., 2017 WL (S.D. Fla. Mar. 8, 2017), report and recommendation adopted, 2017 WL (S.D. Fla. Apr. 3, 2017). After a finding of no liability at trial, the Plaintiffs argued that Defendant s Offers of Judgment should be stricken because they were not made in good faith. To support this argument, Plaintiffs pointed to the low amounts offered ($1,000 to each Plaintiff), to Defendant's potential liability (which supplied the basis for federal jurisdiction), and to the timing of the offers (on the last day allowed by statute and just prior trial). The Court found that the relevant inquiry in determining if an offer was made in good faith is whether Defendant had a reasonable foundation on which to base the offer at the time it was made. Because the Defendant served the Offers of Judgment after discovery (including expert discovery) had been completed, the parties had a sound basis to evaluate the strengths and weaknesses of the case, the Court found that the amount of each offer was not automatically indicative of bad faith. Plaintiffs also argued that the $1,000 Offers of Judgment were disproportionate to the Defendant's potential liability in this diversity action, where the amount in controversy was alleged to be $75,000. But the Court noted various Florida and federal courts have squarely addressed and this argument. GOOD FAITH IS DETERMINDED FROM THE VIEW POINT OF THE OFFEROR NOT THE OFFFEREE. Cacciamani v. Target Corp., 662 F. App'x 759 (11th Cir. 2016): The settlement agreement in this case included language stating that Mr. Cacciamani was not a Medicare beneficiary. It provided, in relevant part:

16 The Releasor, Christian Cacciamani, affirms that he is not currently a Medicare beneficiary and has never received any Medicare benefits arising out of or related to this claim. The parties further acknowledge that the Releasor's representation about his Medicare beneficiary status is material and is a condition precedent to settling this claim [t]he parties agree that there is no risk of shifting future medical expenses to the Medicare program after the settlement of this claim because the Releasor, Christian Cacciamani, hereby acknowledges that no further medical treatment is needed, warranted or required with regard to any alleged injuries sustained or arising out of this accident, occurrence or claim. Taking into account the various factors of this claim including the Releasor's *762 alleged injuries, claimed economic losses, and claimed pain and suffering, no portion of this settlement is allocated for future medical expenses and is therefore not a settlement contemplated by the Medicare Secondary Payer Act In addition, any future medical treatment relating to body parts allegedly injured, sustained or arising out of this accident, occurrence or claim, or expenses incurred by the Releasor for like or similar injuries, are the sole responsibility of the Releasor. Target also served a separate settlement proposal to Mrs. Cacciamani for the amount of $1,000. This proposal contains language regarding confidentiality of the agreement before listing the monetary terms of the agreement: Plaintiff and her counsel must agree to maintain the confidentiality of the settlement terms. TOTAL AMOUNT OF PROPOSAL: One Thousand Dollars ($1,000) AMOUNT ATTRIBUTED TO PUNITIVE DAMAGES: None. PROVISIONS FOR ATTORNEY FEES: Included in settlement amount. The 11 th Circuit agreed with the district court that Mr. Cacciamani has not met his burden to prove that the offeror acted in bad faith because Mr. Cacciamani could point to no evidence showing that Target knew, at the time it made the offer, that the statement no further medical treatment is needed was incorrect. Instead, the only evidence Mr. Cacciamani could point to indicating that Target knew about his ongoing medical treatment was a response to interrogatories from June 2014, over a year after the settlement offer was made. The Court stated that the focus on the issue of good faith is not whether it would have been reasonable for Mr. Cacciamani to reject the settlement offer and to refuse to stipulate that he would no longer need medical care, but instead the relevant inquiry is whether Target acted in good faith and had a reasonable foundation to make the offer. Target did not find out about Mr. Cacciamani's ongoing medical treatment until over a year later.

17 As for the PFS made to Mrs. Cacciamani, the Court found that the confidentiality provision in the proposed settlement to Mrs. Cacciamani was not impermissibly vague. It indicated who was bound by the provision Mrs. Cacciamani and her attorney and it was immediately followed by the key monetary terms of the agreement. KUHAJDA AND ITS PROGENY: In Kuhajda v. Borden Dairy Co. of Alabama, LLC., 202 So. 3d 391 (Fla. 2016), Susanne Kuhajda served Borden Dairy Company of Alabama, LLC, and Major O. Greenrock with identical offers of judgment specifying that the offers included costs, interest, and all damages or monies recoverable under the complaint and by law but failed to state whether the proposal included attorney s fees. The Supreme Court held that if attorney fees are not sought in the pleadings, an offer of settlement is not invalid for failing to state whether the proposal includes attorney fees and whether attorney fees are part of the legal claim. In Aguado v. Miller, 219 So. 3d 216 (Fla. 1 st DCA 2017) the plaintiff s motion for attorney's fees based on an unaccepted proposal for settlement was denied by the trial court based on its determination that the proposal was invalid because it did not strictly comply with Florida Statute and Rule in two respects: (1) it did not state whether attorney's fees were part of the claim to be settled, and (2) it did not state the amount offered to settle a claim for punitive damages. Based on Kuhajda, the First DCA reversed because the plaintiff sought neither attorney s fees or punitive damages in his complaint. In Am. Home Assurance Co. v. D'Agostino, 211 So. 3d 63 (Fla. 4 th DCA. 2017) the defendant served a proposal for settlement. The proposal contained two pertinent provisions: This proposal is intended to resolve all claims of Plaintiff... against Defendant... in the abovestyled action and [a]cceptance... is conditioned upon Plaintiff filing a Voluntary Dismissal with Prejudice of Defendant. This Proposal includes all potential claims for attorneys' fees and costs. The trial court denied the defendant's motion on the ground that the defendant's proposal for settlement failed to strictly follow rule 1.442's requirements in two respects: (1) by stating that the proposal resolves all claims instead of all damages in the action, pursuant to rule 1.442(c)(2)(B) ( A proposal shall... state that the proposal resolves all damages that would otherwise be awarded in a final judgment in the action in which the proposal is served, subject to subdivision (F). ) and (2) by failing to state whether attorneys' fees are part of the legal claim pursuant to rule 1.442(c)(2)(F) On the first issue, the Fourth DCA concluded the defendant's proposal for settlement, despite using the word claims instead of damages, was sufficiently clear and definite to have allowed the plaintiff to make an informed decision without needing clarification. Nichols, 932 So.2d at No other claimed benefits were at issue besides UM benefits, as the plaintiff did not plead in the complaint any entitlement to Med Pay or PIP benefits. Thus, given that the plaintiff's claim and damages were one and the same, the proposal's use of the word claims instead of damages reasonably could not have affected the plaintiff's decision on whether to accept the proposal.