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Florida First DCA reverses trial court's order denying motion for attorney's fees and costs due to rejected proposal for settlement, remands as to whether nominal offer made in good faith

On May 31, 2017, in Taylor Engineering Inc. v. Dickerson Florida Inc., No. 1D15-4782, the Florida First DCA reversed a trial court’s order denying the appellant’s motion for attorney’s fees and costs due to the appellee’s previous rejection of a proposal for settlement, remanding the case to the trial court for a determination whether the proposal was made in good faith. The appellee argued that the appellant’s proposal for settlement incorporated a nominal offer that was not made in good faith. The Court acknowledged an “apparent inconsistency” in its previous rulings on this subject. The Court previously held in Arrowood Indemnity Co. v. Acosta, Inc., 58 So. 3d 286, 289 (Fla. 1st DCA 2011) that a nominal offer will withstand judicial scrutiny where the offeror had a reasonable basis to believe that exposure to liability was “minimal”, while later holding in General Mechanical Corp. v. Williams, 103 So. 3d 974, 976 (Fla. 1st DCA 2012) that a reasonable basis for a nominal offer exists “where the undisputed record strongly indicates that the defendant had no exposure.” The Court noted that the latter standard was based on a Third DCA formulation articulated in Event Services America, Inc., v. Ragusa, 917 So. 2d 882 (Fla. 3d DCA 2005), but in fact the Third DCA decision appears to incorporate both standards, suggesting to the First DCA that the articulation of “no exposure” was intended to be synonymous with “nominal exposure,” which the First DCA interpreted as synonymous with “minimal exposure.” This is consistent with the Third DCA’s use of the “nominal exposure” standard in subsequent cases. See, e.g., Key West Seaside, LLC v. Certified Lower Keys Plumbing, Inc., 208 So. 3d 718 (Fla. 3d DCA 2015). The First DCA noted that the Fourth DCA has also adopted a “nominal exposure” standard, finding the no-exposure standard “too onerous.” Citizens Property Insurance Corp. v. Perez, 164 So. 3d 1, 3 (Fla. 4th DCA 2014). The Second and Fifth DCAs have also adopted a “nominal” standard. Gawtrey v. Hayward, 50 So. 3d 739, 743 (Fla. 2d DCA 2010); Gurney v. State Farm Mut. Auto. Ins. Co., 889 So. 2d 97, 99 (Fla. 5th DCA 2004).