Appellate Case Law Update – When Does the 90 Day Clock Start to Serve a Proposal for Settlement?

January 5, 2018 by on News

The First District Court of Appeal recently examined how service of process on the Chief Financial Officer of the State of Florida (CFO) - in a suit against an insurer -  impacts time limitations for proposals for settlement under Rule 1.442(b). In Markovits v. State Farm Mut. Auto. Ins. Co., No. 1D17-1623 (Fla. 1st DCA, Jan. 3, 2018), Markovits sued her insurer for UM benefits following an auto accident. She served the CFO under on February 4, 2014. The CFO forwarded the complaint to State Farm on February 7, 2014.  Plaintiff then served a proposal for settlement on State Farm on May 6, 2014.

Plaintiff sought attorney’s fees after prevailing at trial. State Farm opposed the motion arguing that the proposal was prematurely filed since it did not receive the complaint until February 7, 2014.  The trial court denied Plaintiff’s motion finding that the proposal was prematurely served under Rule 1.442(b): a “proposal to a defendant shall be served no earlier than 90 days after service of process on that defendant.” The trial court found service of process was perfected on February 7, 2014, when State Farm received the Complaint. That meant that the proposal for settlement was served too early: 88 days after service of process.

The appellate court reversed, holding that “service on an insurer is perfected when the [CFO] is served as the insurer’s attorney to receive service of all legal process issued against it in any civil action or proceeding in this state[.]’” Under that holding, the proposal for settlement was served 91 days after the CFO was served with process. Thus, the proposal was timely under Rule 1.442, and the Plaintiff was entitled to attorney’s fees under Florida Statute Section 768.79.

Therefore, when determining when is the first day a proposal for settlement can be served, it is imperative to determine the service of process date upon the CFO to calculate timeliness of that proposal under Rule 1.442(b).  If it is served before 90 days of that date, then it will be deemed premature and not enforceable.

Kansas R. Gooden
Partner / Practice Group Leader
Direct: 904.493.3755

Kevin D. Franz
Senior Associate
Direct: 954.622.0093

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