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Florida Fourth DCA reverses trial court’s award of fees and costs to plaintiff based on defendant’s failure to accept proposal for settlement, concluding that the proposal was unenforceable because it was issued prior to the proper substitution of the deceased defendant’s curator as defendant

On September 9, 2020, in De La Riva v. Chavez, No. 4D19-1371, the Florida Fourth DCA reversed a trial court order granting the prevailing plaintiff in a motor vehicle negligence case attorney’s fees and costs based on the defendant’s failure to accept a proposal for settlement. The plaintiff had initially sued the at-fault driver, and when the at-fault driver died during the pendency of the case, defense counsel timely filed a suggestion of death. Plaintiff sought to have the personal representative of the at-fault driver’s estate substituted as a party defendant, but after receiving no information from defense counsel about an estate having been created, the plaintiff simply filed a amended complaint naming “John Doe” as the personal representative. However, without plaintiff’s knowledge, a Miami-Dade probate court had appointed an individual as curator of the estate (the named defendant in the appeal). Plaintiff subsequently served a proposal for settlement on defense counsel but received no response. Almost a year thereafter, defense counsel moved to dismiss the complaint based on the incorrect designation of the defendant, prompting the plaintiff to immediately file a second amended complaint correcting the error. According to the Fourth DCA, this proved fatal to the plaintiff’s claim for attorney’s fees and costs following the jury verdict because Florida Rule of Civil Procedure 1.442 does not permit the service of proposals for settlement until at least 90 days after service of process on the defendant, and the proper defendant in this case was not served with service of process until after the proposal for settlement had been made.