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Second District Court of Appeal reverses trial court's award of fees and costs, holds that proposal for settlement was fatally flawed

On February 10, 2017, in Diecidue v. Lewis et. al, No, 2D15-1852, the 2nd DCA reversed a trial court's award of fees and costs to the plaintiff's UIM insurer, Allstate, which was a defendant in the case. Allstate had served the plaintiff with a proposal for settlement under Fla. Stat. Section 768.79 in the amount of $50,000, which the plaintiff had rejected, and the plaintiff was awarded only $18,500 at trial due to a jury determination that he was 80% comparatively negligent in the accident. After an additional reduction of $15,000 for the plaintiff's collateral recovery from a PIP policy and a MedPay policy, the net verdict was only $3,700. The plaintiff filed a motion for taxation of costs and was awarded $64,401 and $89.56 in insurance premiums, plus statutory interest, but only the $26,853 in costs that were incurred prior the date of the proposal for settlement were included in the calculation of the plaintiff's recovery under Section 768.79. Consequently, the plaintiff was not considered to have exceeded the 75% recovery threshold necessary to avoid the attorney's fees and costs sanctions of Section 768.79, and Allstate was awarded $103,744 in fees and costs.

The plaintiff unsuccessfully argued before the trial court that the proposal for settlement was fatally ambiguous because the release incorporated into the proposal required him to falsely represent that he had no unmarried dependents able to bring a claim for consortium. The 2nd DCA, exercising de novo review, noted that Florida Rule of Civil Procedure Section 442(c)(2)(C)-(D) requires the offeror to "state with particularity any relevant conditions" of the proposal and to "state with particularity all nonmonetary terms of the proposal." "The term 'particularity' as used in rule 1.442(c) means that the offeror must provide 'specific details' of any condition or nonmonetary term." 1 Nation Tech. Corp. v. A1 Teletronics, Inc., 924 So. 2d 3, 6 (Fla. 2d DCA 2005) (quoting Swartsel v. Publix Super Mkts., Inc., 882 So. 2d 449, 453 (Fla. 4th DCA 2004)). "If ambiguity within the proposal could reasonably affect the offeree's decision, the proposal will not satisfy the particularity requirement." State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006).

Based on the foregoing, and on its reading of the release form, the 2nd DCA concluded that the proposal for settlement was fatally flawed because it would have been impossible for the plaintiff to honestly represent that he had no dependents.