Florida Rule of Civil Procedure 1.442 sets forth that a proposal “shall state whether the proposal includes attorneys’ fees and whether attorneys’ fee are part of the legal claim.”  However, Florida Statute 768.79 does not contain such a requirement.  For the past several years, District Courts have grappled with this requirement.

Last week, in Kuhajda v. Borden Dairy Company of Alabama, LLC, 41 Fla. L. Weekly S471a (Oct. 20, 2016), the Florida Supreme Court resolved the conflict among of the District Courts.  The Court specifically addressed whether a proposal for settlement could be invalid if it failed to address attorney’s fees where no attorney’s fees had been sought in the case.

In the underlying case, the Plaintiff served the Defendant a proposal for settlement. The proposal did not address attorney’s fees in accordance with Rule 1.442.  The trial court awarded fees finding that the proposal was valid because the plaintiff’s complaint did not seek fees.

On appeal, the First District reversed holding that a proposal for settlement must strictly comply with Florida Rule of Civil Procedure 1.442 even where a complaint does not include a claim for attorney’s fees.

On review, the Florida Supreme Court determined that “Rule 1.442(c)(2)(F)’s requirements relating to attorney’s fees are totally irrelevant to the settlement of a case in which attorney’s fees are not sought.”  The Court explained:

We decline to invalidate Kuhajda’s offers of judgment solely for violating a requirement in rule 1.442 that section 768.79 does not require. The procedural rule should no more be allowed to trump the statute here than the tail should be allowed to wag the dog. A procedural rule should not be strictly construed to defeat a statute it is designed to implement.

The Court held that the Plaintiff’s proposal for settlement was not ambiguous because the plaintiff did not seek attorney’s fees in her complaint. The Court found the plaintiff’s proposal fully complied with the substantive requirements of section 768.79.

Accordingly, if the complaint does not seek attorney’s fees as part of the legal claim, a proposal for settlement cannot be found invalid simply because it did not state that they were included in the offer or were part of the claim.  This is a great example of the constantly moving target that the parties face when trying to draft a valid proposal for settlement.

If you have any questions about this case, would like a seminar on proposal for settlements or would like to refer an appellate matter, please contact our appellate attorneys.