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Florida Second DCA rules that where plaintiff’s attorney made “offer” to have defendant tender $10,000 insurance liability limits, defendant’s unsuccessful attempt to deliver check at night to closed law office was qualifying tender and created binding settlement.

November 15, 2019, in Lee v. Chmielewski, No. 2D17-4275, the Florida Second DCA reversed a trial court ruling that denied the summary judgment motion of the defendant in a motor vehicle negligence wrongful death case. The defendant’s motion for summary judgment was premised on the fact that the plaintiff’s attorney had submitted what the defendant characterized as a binding settlement offer, contained in a letter from plaintiff’s counsel “providing Geico [the defendant’s liability insurer] with an opportunity” to tender the $10,000 insurance limits. Later in the letter, plaintiff’s counsel alternatively characterizes the “opportunity to tender” as an “offer” and indicates that it will expire in 14 days. After receiving the letter, defense counsel had tried to have the check hand delivered to the office of plaintiff’s counsel on the evening of the last day for acceptance at around 7:00 p.m., but the office was closed. After the deadline passed, plaintiff’s counsel had refused to accept the tender. The trial court denied the summary judgment motion, concluding that the defendant had not accepted the summary judgment “settlement offer” because he had failed to tender in time as required by the offer. The Second DCA disagreed, opining that the defendant should not be penalized because plaintiff’s counsel was not at his office at 7:00 p.m. to accept the offer. The Second DCA cited Cullum v. Packo, 947 So. 2d 533, 536 (Fla. 1st DCA 2006) ("[T]he unrebutted evidence shows that Cullum delivered the check to Packo on April 16—well within the ten-day cure period. We see no reason why Cullum should be penalized for Packo's failure to be available to accept payment.").