Proposals for Settlement in Florida
Is a Florida Proposal for Settlement (“PFS”) Made by Multiple Offerors to a Single Offeree an Enforceable PFS?
Florida Proposals for Settlement were created to reduce litigation but they have done anything but.
Florida Statute 768.79 is the “Offer of Judgment” statute. The rule states that if the defendant in litigation files a “proposal for settlement” under Florida Rule of Civil Procedure 1.442, the plaintiff must obtain a verdict of higher than 75% of the amount proposed by the defendant. If there is a defense verdict or the verdict is less than 75% of the verdict, then the plaintiff is responsible for the defendant’s reasonable attorney’s fees and costs from the date of the PFS. A plaintiff has thirty days from the date of receipt to accept or reject the defendant’s offer. If the plaintiff does not accept the offer within 30 days of receipt, it is deemed rejected by law. Likewise, a plaintiff may make a PFS to a defendant and, if the plaintiff secures a final judgment that is 25% above the amount of the offer, then the plaintiff will, on top of her judgment, be entitled to her attorney’s fees going back to the date of the PFS.
The purpose of the rule was to incentivize both parties to settle disputes and to penalize plaintiffs and defendants who, in hindsight, should have accepted reasonable offers to settle their cases. In situations with a single plaintiff and defendant, this rule is straight forward enough. However, things can get complicated when there are multiple plaintiffs, multiple defendants, and especially in cases with multiple plaintiffs and multiple defendants. One such example is Olivia Ziadie, as plenary guardian of the person and property of Francis Ziadie, incapacitated, P Z, Plaintiffs, v. Hoang Dinh DUONG, M.D.; Radiology Associates of Hollywood, P.A., et al., Defendants., 2010 WL 11207077 (Fla.Cir.Ct.).
In that case, Olivia Ziadie, acting as guardian of her adult son Francis Ziadie, brought medical malpractice claims against Dr. Hoang Dinh Duong, M.D., Radiology Associates of Hollywood, P.A., and others. The complaint alleged that Dr. Duong’s negligence caused permanent paralysis to her son. Olivia had been appointed his plenary guardian due to his incapacity. At the time the initial complaint was filed, Francis’s children were minors. Thus, the complaint identified the plaintiff as “Olivia Ziadie, as plenary guardian of the person and property of Francis Ziadie, incapacitated, and for Francis Ziadie, as parent and legal guardian of Philip Ziadie and Paul Ziadie, his minor children.”
Prior to trial, Olivia made a proposal for settlement. Dr. Duong received a letter of notice of proposal together with a formal Proposal for Settlement for a total amount of $1 million. The proposal was broken down as follows. $900,000 for Olivia Ziadie, as plenary guardian of the person and property of Francis Ziadie, incapacitated; $50,000 for Philip Ziadie, the minor son of Francis Ziadie, and $50,000 for Paul Ziadie, the minor son of Francis.
Dr. Duong did not accept the proposal. At trial, a jury found Dr. Duong’s negligence was 75%the cause of Francis’s injuries, finding another doctor 25% responsible. After the court granted the defendants’ motion for setoff, it entered judgment as follows: (1) for Olivia, as guardian of Francis, $3,896,926 in economic damages and $6 million in non-economic damages; and (2) for each child, $172,000 in non-economic damages.
Olivia moved for attorney’s fees pursuant to the proposal for settlement, as the award to each claimant exceeded by more than 125% of the amount of the proposal for settlement as to each claimant. Dr. Duong claimed that the proposal was ambiguous because the cover letter did not spell out the exact terms contained in the proposal for settlement. Further, the proposal did not give Dr. Duong the opportunity to settle the individual claims but required him to settle all the claims together. The trial court granted the motion for fees, concluding that the offer was not ambiguous. It found that there was a singular plaintiff, Olivia, asserting claims on behalf of multiple claimants, and that the offer was valid and unambiguous.
The conclusion: Proposals for Settlement in Florida can be powerful tools. But before employing them, it is important to understand the statute and Rule under which the PFS will travel. It is also vital to ensure that the recent case law interpreting both the statute and Rule are reviewed, as courts in Florida are constantly analyzing and addressing these proposals in the state, creating additional requirements that may invalidate otherwise valid offers. Nevertheless, despite these obstacles, PFSs can be effective in creating settlement and fee-shifting opportunities, and in applying pressure and creating risk for an opposing party. Thus, an offer of judgment should be considered as part of an overall litigation strategy.
If you have a personal injury case in litigation and would like to consult with our firm regarding the advantages and disadvantages of filing a PFS, please call our office at (813) 463-0123, or use our Contact Form at www.fulgenciolaw.com.