Florida litigators are well aware of the power of a properly used proposal for settlement and the potentially devastating consequences of rejecting such a proposal. Such proposals are powerful tools designed to facilitate settlement by potentially exposing parties who reject good faith offers to settle to attorneys’ fee awards. See § 768.79(1), Fla. Stat.;[i]Attorneys’ Title Ins. Fund, Inc. v. Gorka, 989 So.2d 1210, 1213 (Fla. 2d DCA 2008) (“The purpose of section 768.79 is to encourage the settlement of lawsuits.”); Lieff v. Sandoval, 726 So.2d 335, 336 (Fla. 3d DCA 1999) (“The creation of the right to attorney’s fees is the reason, or among the reasons, why any litigant makes an offer under section 768.79. It is the carrot held out by the statute to encourage early settlements.”). Proposals for settlement are often the subject of appellate decisions in Florida.In SDG Dadeland Associates, Inc. v. Arias, No. 3D22-2237 (Fla. 3d DCA Jan. 17, 2024), the Third District was tasked with addressing whether a joint proposal for settlement which expressly provides that one co-defendant does not contribute any portion of the settlement proceeds is unenforceable as an illusory contract lacking consideration. The case is a great read on the interplay between proposals for settlement, indemnification, and the concept of illusory contracts.A. Propos

On March 24, 2023, Gov. Ron DeSantis signed House Bill 837, “Civil Remedies,” into law. While other articles have discussed the wide-ranging effects of this new law, this post focuses specifically on how the law alters Florida’s proposal for settlement landscape.Before March 24, proposals for settlement, sometimes referred to as offers of judgment, were exclusively governed by Florida Statutes section 768.79 and Florida Rule of Civil Procedure 1.442. No longer.Section 768.79 applies to “any civil action for damages filed in the courts of” Florida. Case law confirms that a proposal for settlement cannot be served where an action includes monetary and non-monetary relief or only non-monetary relief. But there is an exception. If an action seeks damages and includes a request for a declaratory judgment that essentially sought money damages, an offer could be served in such an action.Now, a second exception exists. Florida chapter 2023-15, section, 5, adds section 624.1552 to the Florida Insurance Code. Section 624.1552 provides that “[t]he provisions of s. 768.79 apply to any civil action involving an insurance contract.” The important change in Florida’s proposal for settlement landscape comes through the Legislature omitting “for damages” and replacing it with “involving an insurance contract,” as the phrase appears in section 624.1552.Three principles of law combine to suggest the result

On December 16, 2022, Florida’s Governor signed Senate Bill 2A into law, bringing a number of changes to Florida’s insurance litigation landscape. These reforms include an amendment to the Florida law governing offers of judgment or settlement, section 768.79, Florida Statutes. Under the amended law, enumerated at section 768.79(6), “a property insurer may make a joint offer of judgment or settlement that is conditioned on the mutual acceptance of all the joint offerees” in a breach of contract action. (It is noted that section 768.79(6) applies only to breach of contract actions.).Serving a joint offer of judgement or proposal for settlement prior to the new law presented a challenge of validity. Until now, the validity of a joint offer or proposal was assessed through the lens of a Florida Supreme Court case called Attorneys’ Title Ins. Fund, Inc. v. Gorka, 36 So. 3d 646 (Fla. 2010). The Court in Gorka held that joint offers conditioned on the mutual acceptance of all joint offerees are invalid and unenforceable. The Court determined that joint offers are conditioned such that neither offeree can independently evaluate or settle his or her respective claim by accepting the proposal.The new amendment to section 768.79, Florida Statutes, changes this entire

Recently, the Florida Supreme Court resolved an interdistrict conflict between the decision of the Second District Court of Appeal in Suarez Trucking FL Corp. v. Souders, 311 So. 3d 263, 272 (Fla. 2d DCA 2020) and the decision of the Fourth District Court of Appeal in Cirrus Design Corp. v. Sasso, 95 So. 3d 308, 312 (Fla. 4th DCA 2012), approving the latter. Suarez Trucking FL Corp. v. Souders, 47 Fla. L. Weekly S263 (Fla. Oct. 20, 2022).The conflict concerned whether there was a binding settlement agreement under the provisions of Florida’s offer of judgment and demand for judgment statute, i.e., section 768.79, Florida Statutes. The Second DCA found that defendant Suarez Trucking’s filed written notice accepting the plaintiff’s offer of judgment was insufficient to form a binding contract, and that the settlement check tendered pursuant to the offer of settlement was deficient, because it included as a payee, in addition to the plaintiff and his counsel, the carrier holding a workers’ compensation lien. By contrast, the Fourth DCA held that the filed acceptance of an offer of judgment under section 768.79 led to the formation of a substituted agreement, and performance was not necessary to the formation of the settlement.The Supreme Court found that the Second DCA’s majority opinion erroneously conflated acceptance with performance and misunderstood what is required to manifest acceptance of an offer that invites a promissory acceptance. The court noted that the statute sets forth a simple and straightforward framework for accepting a written offer: “[B]y filing a written acceptance with the court within 30

rts have been saturated by an enormous amount of PIP-based lawsuits. Often times, these PIP suits are based on claims for damages of extremely low-value amounts just to get closer to the bigger prize-attorney’s fees. Before Fla. Stat. §627.428 was repealed, plaintiffs in PIP suits were entitled to an award of attorney’s fees if they were successful in any PIP-based contract claim—no matter how small the claim. This is why it is not uncommon to encounter PIP cases for claimed damages of less than $100.00, or in some cases, less than a $1.00.As such, the influx of these low-value and often-frivolous PIP lawsuits is seen by some as a direct result of certain plaintiffs and attorneys who have been incentivized to file these kind of suits pursuant to the one-way attorney’s fee provision. By removing the plaintiff’s right to attorney’s fees pursuant to Fla. Stat. §627.428, the Florida Legislature hopes that plaintiffs and attorneys will now bring forth fewer, but more legitimate, PIP claims.Fla. Stat. §768.79: Offer of Judgment and Demand for JudgmentHowever, the changes brought forth by the Legislature did not completely remove a plaintiff’s right to an entitlement to attorney’s fees in a PIP suit. By leaving in Fla. Stat. §768.79, plaintiffs still have an avenue to win an award of attorney’s fees but there is a caveat. Fla. Stat. §768.79(1) “Offer of Judgment and Demand for Judgment” states that:“…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.”Keep in mind, plaintiffs cannot serve a proposal for settlement any earlier than 90 days from the date the defendant was served with the complaint, and no later than 45 days from the trial date (or first day of the trial docket) See Fla. R. Civ. P. 1.442. Therefore, it will be in

Additionally, revised Section 626.854 prohibits public adjusters from offering financial incentives to residential property owners for allowing the adjuster to inspect the property owner’s roof or making a claim for damage to the property owner’s roof.Statutory Offers of JudgmentThere has been some question among those following S.B. 76 regarding whether the bill prohibits statutory offers of judgments. Florida Statutes Section 768.79 encourages settlement of claims by providing an attorney fee shifting mechanism in instances where the defendant makes an offer of judgment to the plaintiff, and the ultimate judgment is one of no liability or the plaintiff obtains a judgment that is at least 25% less than the amount of the offer. Section 768.79 has a corresponding provision for plaintiffs that make reasonable proposals for settlement.

Florida’s offer of judgment statute, Florida Statutes section 768.79, is a common technique for any litigator who wants to place additional risk on the plaintiff. The statute provides that if a defendant in a civil suit files an offer of judgment that is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable attorneys’ fees and costs from the date of filing if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer.

Florida’s offer of judgment statute, Florida Statutes section 768.79, is a common technique for any litigator who wants to place additional risk on the plaintiff. The statute provides that if a defendant in a civil suit files an offer of judgment that is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable attorneys’ fees and costs from the date of filing if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer.

This article addresses a party’s ability to recover statutory attorneys’ fees through strict compliance with the rules and statutes regarding a Proposal for Settlement.A Proposal for Settlement, also known as an Offer of Judgment, is essentially a written offer served on the opposing party to settle a pending lawsuit. To encourage settlement of legal disputes, the Florida legislature adopted Section 768.79, Florida Statutes, which entitles an offering party to attorneys’ fees if certain conditions are met after the opposing party rejects the offer. To implement this statutory right to fees, and to address the procedural implementation of the statute, the Florida Supreme Court adopted Rule 1.442, Florida Rules of Civil Procedure.

See Fla. R. Civ. Pro. 1.442(f)(1). If the plaintiff chooses to withdraw the proposal within the 30-day period, he may do so provided the written withdrawal is delivered before a written acceptance is delivered. See Fla. R. Civ. Pro. 1.442(e). Once withdrawn, the proposal is void.Fla. Stat. §768.79 provides additional information regarding an offer or demand for judgment. In order to invoke this section, it must be stated in the proposal.