Friday Florida Law Update

The photo above is dedicated to the fact that we are about to discuss Florida’s Proposal for Settlement statute for the umpteenth time!  I think soon I am going to approach local law schools about being an adjunct professor on this topic!

Ok, for you new fans, here’s a quick refresher.  The Proposal for Settlement is a statutory procedure allowing either party the chance to tender a written settlement offer that remains open for 30 days.   If the offeree does not accept the offer in 30 days, it expires, and if the matter proceeds to trial and the offeree does more than 25% worse at trial than they would have had they accepted the offer, the trial court is supposed to require the offeree to pay the offeror’s attorney’s fees from the date of the offer. 

As we have discussed at length, this seemingly simple statute has killed a lot of trees in legal opinions on it.  In today’s case of Andrews v. Frey, 2011 WL 3206882 (Fla. 5th DCA July 29, 2011), the Fifth DCA held that an offer made by one of two defendants which required, as a condition of settlement, that BOTH defendants be released, was valid under the circumstances.

In the case, a minor passenger was injured in a car accident.  The minor’s mother sued the driver of the vehicle for negligence, as well as the driver’s spouse (the minor’s father) vicariously as the owner of the vehicle.   (Under Florida’s dangerous instrumentality doctrine, the owner of a vehicle is liable for the negligence of the vehicle’s driver — think about that next time you lend someone your car keys!).  During discovery, the driver issued an Offer of Settlement to the minor and her mother on her own behalf only, but conditioned the offer on dismissal of both she AND the vicariously liable owner.

Plaintiffs rejected the offer and, predictably, underachieved at trial, causing the trial court to award fees to the defendants pursuant to the proposal for settlement. 

On appeal, the Fifth DCA affirmed the judgment, finding significance in the fact that 1) the omitted vehicle owner was only vicariously liable; and 2) the owner’s vicarious liability was undisputed.  In other words, the failure to include the owner in the offer should have had no effect on the strategical consideration by the offerees in considering the offer.

I never get tired of cases on this statute!

Hope to keep catching up on more posts that I owe you soon!  If we don’t get to it today, have a wonderful and safe weekend all!

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