Proposal for Settlement

Summary
In Florida, Proposals for Settlement are controlled by both Section 768.79, Florida Statutes and Rule 1.442, Florida Rules of Civil Procedure. Under Florida law a litigant is permitted to issue a proposal for settlement to the opposition, which if not accepted, would allow the offeror to recover its attorneys' fees if the final result is not at least 25 percent better than the offer made. A defendant must obtain a final judgment for 25 percent less than the amount offered, while a plaintiff must recover at least 25 percent more than the amount demanded. Though the process might sound straight forward, enforcing a proposal for settlement has proved to be very difficult for Florida litigants. Joint proposals for settlement either issued by multiple parties or to multiple parties have proved especially difficult to enforce.

Statute
768.79 - Offer of Judgment and demand for Judgment

(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. Where such costs and attorney's fees total more than the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the plaintiff's 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. If rejected, neither an offer nor demand is admissible in subsequent litigation, except for pursuing the penalties of this section.

(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.

(3) The offer shall be served upon the party to whom it is made, but it shall not be filed unless it is accepted or unless filing is necessary to enforce the provisions of this section.

(4) An offer shall be accepted by filing a written acceptance with the court within 30 days after service. Upon filing of both the offer and acceptance, the court has full jurisdiction to enforce the settlement agreement.

(5) An offer may be withdrawn in writing which is served before the date a written acceptance is filed. Once withdrawn, an offer is void.

(6) Upon motion made by the offeror within 30 days after the entry of judgment or after voluntary or involuntary dismissal, the court shall determine the following:


 * (a) If a defendant serves an offer which is not accepted by the plaintiff, and if the judgment obtained by the plaintiff is at least 25 percent less than the amount of the offer, the defendant shall be awarded reasonable costs, including investigative expenses, and attorney's fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred from the date the offer was served, and the court shall set off such costs in attorney's fees against the award. When such costs and attorney's fees total more than the amount of the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the award to the plaintiff.


 * (b) If a plaintiff serves an offer which is not accepted by the defendant, and if the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer, the plaintiff shall be awarded reasonable costs, including investigative expenses, and attorney's fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred from the date the offer was served.


 * For purposes of the determination required by paragraph (a), the term "judgment obtained" means the amount of the net judgment entered, plus any postoffer collateral source payments received or due as of the date of the judgment, plus any postoffer settlement amounts by which the verdict was reduced. For purposes of the determination required by paragraph (b), the term "judgment obtained" means the amount of the net judgment entered, plus any postoffer settlement amounts by which the verdict was reduced.

(7)(a) If a party is entitled to costs and fees pursuant to the provisions of this section, the court may, in its discretion, determine that an offer was not made in good faith. In such case, the court may disallow an award of costs and attorney's fees.


 * (b) When determining the reasonableness of an award of attorney's fees pursuant to this section, the court shall consider, along with all other relevant criteria, the following additional factors:


 * 1. The then apparent merit or lack of merit in the claim.


 * 2. The number and nature of offers made by the parties.


 * 3. The closeness of questions of fact and law at issue.


 * 4. Whether the person making the offer had unreasonably refused to furnish information necessary to evaluate the reasonableness of such offer.


 * 5. Whether the suit was in the nature of a test case presenting questions of far-reaching importance affecting nonparties.


 * 6. The amount of the additional delay cost and expense that the person making the offer reasonably would be expected to incur if the litigation should be prolonged.

(8) Evidence of an offer is admissible only in proceedings to enforce an accepted offer or to determine the imposition of sanctions under this section.

Florida Rule of Civil Procedure
'''[http://floridacivpro.com/rules-1-280-to-1-490/1-442-proposals-for-settlement/ Rule 1.442. PROPOSALS FOR SETTLEMENT]'''

(a) Applicability. This rule applies to all proposals for settlement authorized by Florida law, regardless of the terms used to refer to such offers, demands, or proposals, and supersedes all other provisions of the rules and statutes that may be inconsistent with this rule.

(b) Service of Proposal. A proposal to a defendant shall be served no earlier than 90 days after service of process on that defendant; a proposal to a plaintiff shall be served no earlier than 90 days after the action has been commenced. No proposal shall be served later than 45 days before the date set for trial or the first day of the docket on which the case is set for trial, whichever is earlier.

(c) Form and Content of Proposal for Settlement.


 * (1) A proposal shall be in writing and shall identify the applicable Florida law under which it is being made.


 * (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;


 * (B) identify the claim or claims the proposal is attempting to resolve;


 * (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;


 * (E) state with particularity the amount proposed to settle a claim for Punitive damages, if any;


 * (F) state whether the proposal includes attorneys' fees and whether attorneys' fees are part of the legal claim; and


 * (G) include a certificate of service in the form required by rule 1.080(f).


 * (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.


 * (4) Notwithstanding subdivision (c)(3), when a party is alleged to be solely vicariously, constructively, derivatively, or technically liable, whether by operation of law or by contract, a joint proposal made by or served on such a party need not state the apportionment or contribution as to that party. Acceptance by any party shall be without prejudice to rights of contribution or indemnity.

(d) Service and Filing. A proposal shall be served on the party or parties to whom it is made but shall not be filed unless necessary to enforce the provisions of this rule.

(e) Withdrawal. A proposal may be withdrawn in writing provided the written withdrawal is delivered before a written acceptance is delivered. Once withdrawn, a proposal is void.

(f) Acceptance and Rejection.


 * (1) A proposal shall be deemed rejected unless accepted by delivery of a written notice of acceptance within 30 days after service of the proposal. The provisions of rule 1.090(e) do not apply to this subdivision. No oral communications shall constitute an acceptance, rejection, or counteroffer under the provisions of this rule.


 * (2) In any case in which the existence of a class is alleged, the time for acceptance of a proposal for settlement is extended to 30 days after the date the order granting or denying certification is filed.

(g) Sanctions. Any party seeking sanctions pursuant to applicable Florida law, based on the failure of the proposal's recipient to accept a proposal, shall do so by serving a motion in accordance with rule 1.525.

(h) Costs and Fees.


 * (1) If a party is entitled to costs and fees pursuant to applicable Florida law, the court may, in its discretion, determine that a proposal was not made in good faith. In such case, the court may disallow an award of costs and attorneys' fees.


 * (2) When determining the reasonableness of the amount of an award of attorney fees pursuant to this section, the court shall consider, along with all other relevant criteria, the following factors:


 * (A) The then-apparent merit or lack of merit in the claim.


 * (B) The number and nature of proposals made by the parties.


 * (C) The closeness of questions of fact and law at issue.


 * (D) Whether the party making the proposal had unreasonably refused to furnish information necessary to evaluate the reasonableness of the proposal.


 * (E) Whether the suit was in the nature of a test case presenting questions of far-reaching importance affecting nonparties.


 * (F) The amount of the additional delay cost and expense that the party making the proposal reasonably would be expected to incur if the litigation were to be prolonged.

(i) Evidence of Proposal. Evidence of a proposal or acceptance thereof is admissible only in proceedings to enforce an accepted proposal or to determine the imposition of sanctions.

(j) Effect of Mediation. Mediation shall have no effect on the dates during which parties are permitted to make or accept a proposal for settlement under the terms of the rule.

Prejudgment Interest
Since prejudgment interest is merely another element of damages, it is properly included in determining whether a judgment is so deficient as to activate the provisions of section 768.79, Florida Statutes. Phillips v. Parrish, 585 So.2d 1038, 1039 (Fla. 1st DCA 1991).

Frequent Mistakes

 * A Proposal for Settlement cannot be used to resolve non-monetary claims, even where the Complaint includes seperate claims for money damages and injunctive relief. Palm Beach Polo Holdings, Inc. v. Equestrian Club Estates Property Owners Association, Inc.


 * Compliance with strict letter of the law -
 * Joint Proposals For Settlement -
 * Issued by Multiple Parties - Multiple parties may issue a joint proposal for settlement that requires a single opposing party to release each of them. However, joint proposals for settlement must comply with the rules of procedure established by Rule 1.422. A joint proposal for settlement must state clearly how much is being offered by or demanded by each party issuing the joint proposal for settlement. See Lamb v. Matetzschk, 906 So. 2d 1037 (Fla. 2005).
 * Issued to Multiple Parties -