Appellate Case Law Update – Motions for Extension of Time to Response to PFS Do Not Automatically Toll Time

June 19, 2018 by on News

The Supreme Court of Florida recently held that “a motion to enlarge does not toll the time to accept a proposal for settlement.” Koppel v. Ochoa, No. SC16-1474, 2018 Fla. LEXIS 1091, *1 (Fla. May 17, 2018). This Opinion comes after multi-District conflict on the impact of a motion for enlargement of time to respond to proposals for settlement served under Rule 1.442.

The underlying facts reflect service of a proposal for settlement under section 768.79 and rule 1.442 by the Plaintiff to Defendant on September 3, 2013. Pursuant to Rule 1.442(f)(1), the proposal was “deemed rejected” if not accepted within 30 days after service. On October 2, 2013 (29 days later), Defendant filed a motion for enlargement of time to respond the proposal based on inter-alia insufficient time to evaluate the proposal and incomplete discovery.

On December 3, 2013, after the trial court heard argument on the motion but before it ruled, the Defendant served a notice purporting to accept the proposal. Two days later, the trial court entered an order denying the motion for enlargement of time. The Plaintiff moved to strike Defendant’s notice of accepting on grounds that it was untimely. Defendant argued the 30-day period tolled until the date her motion for enlargement was denied. Since she accepted the proposal two days prior, her acceptance was timely. The trial court agreed with the Defendant. The Second District Court of Appeal reversed but certified conflict with an Opinion by the Fifth District Court of Appeal.

The Supreme Court of Florida identified the issue as follows: “The conflict issue presented is whether the filing of a motion under Florida Rule of Civil Procedure 1.090 to enlarge the time to accept a proposal for settlement automatically tolls the 30-day deadline for accepting the proposal until the motion is decided.” The Court answered in the negative.

The Court concluded that rules 1.090 and 1.442 are clear and unambiguous. Rule 1.442 requires delivery of a written notice within 30 days after being served a proposal to accept the proposal. The Court explained: “Rule 1.090 allows for the time period set forth in rule 1.442 to be enlarged, but this enlargement is at the trial court’s discretion if the motion was filed before expiration of the time period and cause has been shown. After the time period has expired, the trial court still has discretion to enlarge the time period if the moving party can demonstrate excusable neglect in addition to cause. Nowhere does the rule allow additional time to accept simply by filing the motion to enlarge.”

As such, the Court concluded that “filing of a motion to enlarge the time to accept a proposal for settlement does not automatically toll the 30-day period for accepting the proposal.

Based on this decision, simply moving for an extension of time will not automatically toll the time to accept a proposal. The proposal still must be accepted in writing within 30 days of service of the proposal. If additional time is necessary to evaluate the proposal, a motion for enlargement of time should be filed immediately upon service of the proposal and include reasons amounting to good cause for the extension. The motion must also be heard and ruled on before the 30-day time-period lapses. It will likely be rare for these motions to be granted. As a result, it is best practices to respond to a proposal during the 30 day time frame and not rely on a motion for extension.

If you have any questions about this case or would like to refer an appellate matter, please contact our appellate attorneys.

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

Kevin D. Franz
Senior Associate
Direct: 954.622.0093

Comprehensive Services

Many cases overlap several areas of law. As a full service law firm, we are able to recognize how one legal discipline impacts another. We work as a team on complex issues that require knowledge of a variety of state and federal laws. This multi-disciplinary approach allows clients to receive the large-firm advantage of access to multiple attorneys in a wide scope of practice areas as well as the hands-on customer service offered by a boutique law firm. In addition to civil litigation, employment law, workers’ compensation defense, commercial law, construction law and appeals, our firm also handles professional liability claims.

Our bilingual staff is available to assist with immigration matters, including consular and removal defenses.