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Florida Third DCA rules that proposal for settlement need not be filed with Court prior to or as part of filing of motion for attorney's fees

On April 4, 2018, in Haas Automation v. Fox, No. 3D16-1692, the Florida Third DCA affirmed a defendant’s entitlement to attorney’s fees from a co-defendant based on an unaccepted proposal for settlement relating to a cross-claim. The co-defendant argued that the defendant was not entitled to the award because the proposal for settlement had not been filed with the Court along with the motion for fees. The Third DCA noted that under Fla. R. Civ, P. 1.442(d), the proposal need not be filed “unless necessary to enforce the provisions of the rule,” and that there is no express requirement under 1.442(d) or Section 768.79, Florida Statutes, that the proposal be filed before filing or with a filing of a motion for fees. The Court cited the Florida Supreme Court’s decision in Frosti v. Creel, 979 So. 2d 912, 915 (Fla. 2008) (recognizing that “neither rule 1.442 nor section 768.79 delineates a specific period within which to file a proposal for settlement”). The Third DCA concluded that it was permissible for the defendant to have filed the proposal for settlement after the filing of the motion but before the hearing on the motion.

However, on a separate issue, the Third DCA reversed the trial court’s award of attorney’s fees to the prevailing plaintiffs based on their own unaccepted proposal for settlement to one of the codefendants. The Court concluded that the proposal, which sought to resolve all claims that all four plaintiffs had against the defendant without apportionment among the plaintiffs, was invalid under Rule 1.442(c)(3), which requires a proposal for settlement to state the amount and terms attributable to each party. The plaintiffs argued that Rule 1.442(c)(4)’s “indirect liability” exception to rule 1.442(c)(3)’s apportionment requirement applies because the four plaintiffs were treated as one plaintiff entity throughout the litigation. Rule 1.442(c)(4) excuses the apportionment requirement when the joint offeror “is alleged to be solely vicariously, constructively, derivatively, or technically liable, whether by operation of law or by contract.” The Court rejected the plaintiffs’ argument because their claims were not indirect as a matter of law.