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3d DCA Watch - Offer of Judgment Day

Slog through the foreclosure cases (two), around the PCAs masquerading as opinions (three), past the patriotic support for our troops in a veteran's preference case, marvel at Alvin B. Davis' bow tie, and you arrive at this gem lamenting the infirmities of the Offer of Judgment statute and Florida Rule of Civil Procedure 1.442.

This, people, is why we read. This is why we wait. Gather 'round.

Sixty days (you see where this is going, right?) after being named as a defendant in an amended complaint, the defendant/appellant served proposals for settlement, citing Florida Statutes Section 768.79 and FRCP 1.442. The plaintiffs' did nothing, the trial court granted summary judgment for the defendant that served the proposals but denied its motion for attorney's fees and here we are.

I can hear Professor Massey, dressed to the nines, growl "Read the Rules!" After all, ninety days is ninety days.

The appellant contended that "prematurity is a mere 'technical violation' and not fatal to the validity of a proposal for settlement." My wife would disagree. And so did Judge Emas, writing for the panel.
[t]he Supreme Court’s ... decision in Campbell plainly and unambiguously rejects the notion that a failure to comply with the requirements of rule 1.442 and section 768.79 can be considered a “mere technical violation” thus preserving the validity of a proposal for settlement.
Here is where Judge Emas makes it interesting.
One cannot help but lament the often-tortuous history of offers of judgments/proposals for settlement and the valiant attempts to craft a rule that effectuates the statute’s intended purpose without procedural shortcomings that sometimes serve to frustrate good-faith settlement efforts.
While we do not suggest the existence of an unassailable solution, we would encourage the Florida Bar’s Civil Procedure Rules Committee to consider whether the rule should be amended to require an offeree to serve a limited response to a proposal (apart from the existing response provision in the rule), raising any procedural defects to the proposal, thereby providing the offeror with an opportunity to serve a corrected proposal, in an effort to effectuate the salutary purpose underlying a proposal for settlement. Should the offeree fail to serve such a response, the rule could provide that this failure waives any right to subsequently challenge the proposal based upon these procedural defects. Such an amendment would prevent situations in which an offeror might reasonably believe he has made a fair, valid and binding offer, only to find out (at the eventual conclusion of costly and lengthy litigation) that the offer was procedurally defective and therefore invalid ab initio. If the aim is to promote early and reasonable settlements, it seems worthwhile to consider whether the rule should be fashioned to give the offeror an opportunity to cure any procedural defects so that the offeree has a genuine opportunity to weigh the substantive merits of a proposal for settlement.
Here, here.

Some of the best case law comes out of slip and fall cases, I always say.


  1. We all know about the "often-tortuous history of offers of judgments/proposals", so we should carefully read the rule and statute before we draft and serve one.

  2. On a very quick skim, it appears as though the Third DCA and Judge Bagley got this correct. That being said, it's lamentable, in my view, how Florida courts have seemingly gutted the offer-of-judgment statute. The statute is there for a reason -- it's a key part of tort reform, and is a legitimate attempt to encourage the settlement of frivolous lawsuits. I have very little confidence, however, that, under current case law, the statute effectively serves that purpose. Rarely do you see an appellate court affirm an award of fees under the statute; almost always do you see an appellate court affirm a denial of fees or reverse an award thereof. Again, the statute is there for a reason. The law shouldn't be the way it is. Sorry. OOJ/PFS rant over.

  3. Anybody see the 4DCA opinion on PIP 2nd tier cert starring former Supreme Court Justice Cantero. From the loft of Tally to the bottom of the insurance defense practice. I guess benjamins are benjamins.

  4. Spencer citing. Saw him having a pina colada and some beef chow mein at..... Canton.

  5. if you serve a proposal for settlement too early (per the rule), your motion for fees/sanctions is denied as a result and you lose your appeal on that issue, isn't that, um, malpractice?


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