In a written opinion dated April 16, 2015, the Supreme Court of Florida (“Florida Supreme Court”) overturned an award of attorneys fees and costs to the medical malpractice defendants, finding that the defendants had failed to strictly comply with the statutory requirements in order to be entitled to the attorneys fees and costs they incurred after making a settlement offer to the plaintiff in the amount of $10,000, which the plaintiff rejected and later the jury found in favor of the defendants.
Section 768.79, Florida Statutes
Section 768.79, Florida Statutes (2014) provides, in relevant part:
(1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award. . . . If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney’s fees incurred from the date of the filing of the demand. . . .
(2) The making of an offer of settlement which is not accepted does not preclude the making of a subsequent offer. 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.
(d) State its total amount.
The offer shall be construed as including all damages which may be awarded in a final judgment.
Florida Rule of Civil Procedure 1.442
Florida Rule of Civil Procedure 1.442 provides, in relevant part:
(c) Form and Content of Proposal for Settlement.
. . . .
(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;
. . . .
(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;
. . . .
(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.
The Florida Supreme Court’s Decision
The Florida Supreme Court stated that subdivision (c)(3) of rule 1.442, which requires a joint proposal to state the amount and terms attributable to each offeror or offeree (to be valid, an offer of judgment presented by multiple offerors must apportion the amount that is attributable to each offeror), must be strictly construed because it, as well as the offer of judgment statute, is in derogation of the common law rule that each party is responsible for its own fees (the purpose of the apportionment requirement in the rule is to allow each offeree to evaluate the terms and the amount of the offer as it pertains to him or her).
In the case it was deciding, the Florida Supreme Court determined that the settlement offer was a joint proposal by both medical malpractice defendants: the clear wording of the proposal showed that the two offerors presented the settlement offer. The Florida Supreme Court held that under section 768.79 and rule 1.442 the proposal was invalid because it failed to apportion the settlement amount between the two medical malpractice defendants.
Source Pratt vs. Weiss, D.O., et al., No. SC12-1783.
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