Pursuant to Florida Statute Section 768.79 (1), the Florida Legislature has allowed both the Plaintiff and Defendant the ability to file in the courts of this state what are called Proposals for Settlement, formerly known as Offers of Judgment, to the opposing party. If a Defendant files a Proposal for Settlement 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 the offer if the judgment is one of no liability or the judgment obtained by the Plaintiff is at least 25% less than such offer, and the court shall set off such costs and attorney’s fees against the award. If a Plaintiff files a Proposal for Settlement which is not accepted by the Defendant within 30 days and the Plaintiff recovers a judgment in an amount at least 25% 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 Proposal.

Florida Statute Section 768.79 (2) requires a) that the Proposal for Settlement be made in writing and state that is being made pursuant to this section; b) must 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; and d) state its total amount. Subsection (3) requires that the offer be served upon the party to whom it is made, and shall not be filed with the civil court unless it is accepted.

In negligence actions, the Proposal for Settlement Rule can be highly effective in placing pressure on opposing parties to settle lawsuits prior to trial. The Florida legislature’s intent in creating Proposals for Settlement may have in fact been to promote judicial efficiency by reducing trial dockets. However, while the Proposal for Settlement law appears to be fair on its face, the consequences of its enforcement are not equitable. Many Plaintiffs who are injured in negligence claims do not have the resources to satisfy a Defendant’s attorney’s fees and costs if a Proposal for Settlement is not met from a jury verdict. If an individual Plaintiff cannot afford to pay a Defendant’s attorney’s fees and costs, the civil court will impose a cost judgment against the Plaintiff which will accrue interest at the percentage rate set by the civil court for the given year. This can adversely affect a Plaintiff’s credit, and has even driven some Plaintiffs into bankruptcy. These effects only add insult to the Plaintiff’s injuries, which were often caused through no fault of his or her own. A corporate Defendant, in particular, will likely be in a much better financial position to satisy a Plaintiff’s attorney’s fees and costs. While none of my clients have experienced the adverse consequences of a Proposal for Settlement that was not met, this law forces both parties, but particularly the Plaintiff, to prudently consider a Proposal for Settlement and to understand the true value of his or her case. It is my goal to make sure that each of my clients understands the strengthens and weaknesses of his or her case in order to make an informed decision as to whether to accept a Proposal for Settlement or to proceed to trial.

– Michael Truax, Esq., is an experienced personal injury attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida.  He welcomes questions and comments regarding the above and can be reached at mtruax@boginmunns.com

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information.  You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest, and the firm determines that it is otherwise able to accept the engagement. The engagement would also be confirmed by a written agreement.

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