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Florida Fourth DCA rules that defendant’s proposal for settlement addressed to individual plaintiff in multi-plaintiff proceeding need not specify apportionment with other plaintiffs

On April 10, 2019, in Weiner v. Maulden, No. 4d18-2170, the Florida  Fourth DCA reversed a trial court’s denial of a post-trial motion for attorney fees made by the defendant in a motor vehicle negligence case.  The defendant had been sued in two separate cases by injured parties in the motor vehicle accident and the cases had subsequently been consolidated for discovery purposes but not for trial.  Pursuant to Section 768.79, the defendant served separate proposals for settlement to each plaintiff.  The plaintiff involved in this appeal failed to accept the proposal to her and subsequently obtained a jury verdict at trial which, after set-offs, was less than 75% of the proposal, triggering the attorney’s fee provision of Section 768.79.  However, the plaintiff maintained that the defendant’s proposal was fatally flawed because it failed to apportion the amount of the proposal between the two plaintiffs.  The Fourth DCA rejected this reasoning, noting that only joint proposals are subject to such an apportionment requirement and that this proposal was expressly styled as a proposal only to the individual plaintiff.  Quoting from SPS Dev. Co., LLC v. DS Enters. of Palm Beach, Inc., 970 So. 2d 495, 497 (Fla. 4th DCA 2007), the Fourth DCA also noted that the plaintiff’s claims did not merge with her co-plaintiff’s claims under the consolidation orders because “[w]here cases are consolidated for discovery and trial, they do not lose their individual identities as distinct, separately filed actions.”