Published: November 2015
By: Ted Babbit
Appellate opinions requiring strict compliance with Fla. Stat. 768.79 and Fla. R. Civ. P. 1.442 are legion. Current Rule 1.442(c) states the following: (c) Form and Content of Proposal for Settlement:
A proposal shall be in writing and shall identify the applicable Florida law under which it is being made.
A proposal shall:name the party or parties making the proposal and the party or parties to whom the proposal is being made;identify the claim or claims the proposal is attempting to resolve; state with particularity any relevant conditions;state the total amount of the proposal and state with particularity all non monetary terms of the proposal;state with particularity the amount proposed to settle a claim for punitive damages, if any;state whether the proposal includes attorney’s fees and whether attorneys’ fees are part of the legal claim;and include a certificate of service in the form required by Rule 1.080(f).
Note that the language of the Rule is mandatory. It never uses the word “may,” it only uses the word “shall.” The Supreme Court has stated numerous times that the Rule and statute covering offers of judgment must be strictly construed. Campbell v. Goldman, 959 So. 2d 223 (Fla. 2007). A recent decision of the First District shows just how strictly the Rule can be construed.
In Borden Dairy Company of Alabama, LLC v. Kuhaida, 40 Fla. L. Weekly D1902 (Fla. 1st DCA, Aug. 14, 2015), the plaintiff made an offer of judgment on a timely basis and then received a jury award of damages in excess of the amount contained in the offer of judgment and in excess of the 25% mandated by Fla. Stat. 768.79. The offer indicated that it included costs, interest and all damages or monies recoverable under the complaint and by law. The defendant argued that this offer was invalid because it failed to state whether the proposal included attorney’s fees and whether attorney’s fees were part of the legal claim. As indicated above, the Rule in 1.442(c)(2)(F) states
- A proposal shall: (F) state whether the proposal includes attorneys’ fees and whether attorneys’ fees are part of the legal claim.
The offer did not include any statement about attorneys’ fees because the complaint did not make a claim for attorney’s fees. The trial court granted the plaintiff’s motion to tax attorney’s fees and costs concluding that the failure to include attorney’s fee language did not create an ambiguity because there was never a claim for attorney’s fees.
The First District reversed relying on Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362, 377 (Fla. 2013) which was a case in which there was a claim for attorneys’ fees in the complaint and the offer of judgment failed to strictly comply with the rule because it did not state that the offer included attorney’s fees and whether attorney’s fees were a part of the legal claim. The First District concluded that because the Supreme Court had made the test of validity strict compliance, not the absence of ambiguity, that there was no reason not to apply the holding in Diamond, supra, to a case where no claim for attorneys’ fees was made in the complaint.
This decision of the First District is in conflict with the Fourth District decision in Bennett v. American Learning Systems of Boca Delray, Inc., 857 So. 2d 986 (Fla. 4th DCA 2003) and the First District certified to the Supreme Court that there was a conflict between these decisions. Thus, the ultimate decision on this precise question awaits ruling by the Florida Supreme Court. Nevertheless, the strictness of construction required by this Rule and statute should send a message to every lawyer making an offer of judgment that the requirements of the Rule must be strictly followed even if doing so might be considered form over substance. The best course of action is to recite each and every section of the Rule in the offer specifically stating how that section of the Rule applies to the offer of judgment. It must be assumed that every section of the Rule must be referred to in the offer even if there is no claim and the Rule section has no apparent application.
NOTE: BECAUSE A NUMBER OF PEOPLE HAVE REQUESTED COPIES OF PAST ARTICLES, A COMPILATION OF THESE ARTICLES IS NOW AVAILABLE TO MEMBERS OF THE PALM BEACH COUNTY BAR ASSOCIATION, FREE OF CHARGE, BY CALLING (561) 684-2500.