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Florida Fifth DCA rules that trial court’s award of attorney’s fees and costs to defendant under proposal for judgment statute, Fla. Stat. § 768.79, erroneously included expert witness fess for expert who did not testify at trial

On May 14, 2021, in Pelecki v. Federates National Insurance Company, No. 5D19-3702, the Florida Fifth DCA issued a per curiam affirmance of a trial court’s award of fees and costs to the defendant in a first party homeowner’s insurance case in which the defendant had made a $5,000 pretrial proposal for settlement to the plaintiff and the plaintiff obtained a jury verdict for $15,000. Although the verdict was well above the 75% threshold under Fla. Stat. § 768.79 needed to disqualify the defendant’s proposal for an award of fees and costs, the trial court imposed a $30,000 set-off from the verdict for the insurance company defendant’s prior settlement with the plaintiff’s husband, resulting in a $0 final judgment.The Fifth DCA consequently affirmed the award of fees and costs, except as to the trial court’s award of costs for a non-testifying expert, citing KMS of Fla. Corp. v. Magna Props., Inc., 464 So. 2d 234, 235 (Fla. 5th DCA 1985) (“Appellee’s argument that it is nevertheless entitled to an expert witness fee because the witness was prepared to testify and would have done so but for the directed verdict in appellee’s favor, was considered and rejected in Junkas [v. Union Sun Homes, Inc., 412 So. 2d 52 (Fla. 5th DCA 1982)]”). Judge Evander issued a concurrence to discuss the “questionable validity” of the proposals for settlement issued separately to the plaintiff and her husband, noting that proposals each contained two seemingly inconsistent statements. In one paragraph, the proposal for settlement recites that although both plaintiffs will be listed on the check, the acceptance of the proposal (by the plaintiff to whom the proposal was directed) and the negotiation of the check “will not affect the claim” of the other plaintiff. In the ensuing paragraph, the proposal for settlement recites that if the plaintiff to whom the proposal is directed accepts the proposal, the amount paid by Federated “will be set-off from additional sums, if any, awarded to [the other plaintiff].” Judge Evander pointed out that, notwithstanding the statement in the proposal that settlement by one spouse would not affect the claim of the other spouse, the plaintiff’s claim arguably was affected by her husband’s acceptance because otherwise she would have obtained a net judgment against the defendant and would have been entitled to recover fees and costs under Fla. Stat. § 627.428. Section 627.428 allows insureds who prevail against their insurance company to recover attorney fees. Johnson v. Omega Ins. Co., 200 So. 3d 1207, 1215 (Fla. 2016). Judge Evander concluded that because this argument was not made before the trial court, the Fifth DCA was not in a position to determine whether the proposal for settlement served on the plaintiff was “sufficiently clear and free of ambiguity to allow [the plaintiff] the opportunity to fully consider the proposal,” quoting from Allen v. Nunez, 258 So. 3d 1207, 1211 (Fla. 2018) and additionally citing Mount Vernon Fire Ins. Co. v. New Moon Mgmt., Inc., 239 So. 3d 183, 186 n.2 (Fla. 3d DCA 2018) (declining to addressargument that proposal for settlement was ambiguous because it was notpreserved for appeal).

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