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).
