In Costco Wholesale Corp. v. Llanio-Gonzalez, No. 4D15-4869 (Fla. 4th DCA Mar. 22, 2017), the Fourth District considered two proposals for settlement made by the defendant Costco in a negligence slip-and-fall action. Costco served a proposal to the plaintiff wife seeking to resolve her claim for damages resulting from her slip and fall. Costco served a separate proposal to the plaintiff husband seeking to resolve his claim for loss of consortium. Each proposal was conditioned on each plaintiff executing an attached general release.
The general releases identified Costco, along with any and all related, associated or affiliated companies and parent companies and other entities, including past, present and future representatives, insurers, and attorneys, as “Second Parties.” The releases required each plaintiff to “agree to . . . forever discharge the said Second Parties, of and from all, and all manner of action and actions . . . which said First Party ever had, now has, or which any . . . successor . . . hereafter can, shall or may have . . . from the beginning of the world to the end of these presents.”
The trial court denied Costco’s motion for fees, reasoning that the proposals were ambiguous and unenforceable because they were conditioned upon the release of additional individuals and entities. Costco argued on appeal that its use of standard general releases was proper and did not invalidate the proposals. The Fourth District agreed.
The Court held that its prior decisions of Board of Trustees of Florida Atlantic University v. Bowman, 853 So. 2d 507 (Fla. 4th DCA 2003), and Alamo Financing, L.P. v. Mazoff, 112 So. 3d 626 (Fla. 4th DCA 2013), which found similar descriptions of “second parties” to be valid, were controlling. The Court additionally found the all-inclusive language of the releases did not invalidate the proposals because it is well-established that such language will not bar claims the plaintiff may have against the defendant after the release’s execution date.
Noting that courts are discouraged from “nitpicking” settlement proposals to find ambiguities, the Fourth District concluded that defendant Costco’s proposals for settlement and accompanying releases were sufficiently clear and definite to allow the plaintiffs to make an informed decision on whether to accept the proposals, and reversed the trial court’s order denying entitlement to fees.
Even in light of this case, parties still need to be careful with the wording of any release that is requested and attached to the proposal.
Click on the link to read Pt. II of: Appellate Update – Courts Reject Attempts to Nit-pick Proposals for Settlement
Click on the link to read Pt. III of: Appellate Update – Courts Reject Attempts to Nit-pick Proposals for Settlement
If you have any questions about proposals for settlement or would like to refer an appellate matter, please contact our appellate attorneys