In Boatright v. Philip Morris United States, No. 2D15-1781, 2017 Fla. App. LEXIS 5100 (2d DCA Apr. 12, 2017), the court considered several proposals for settlement served by plaintiffs on two defendant tobacco companies by U.S. Mail. The trial court denied plaintiffs’ fees and costs upon finding the proposals failed to comply with the email service requirements of Fla. R. Jud. Admin. 2.516(b). The Second District reversed the trial court’s order.
Boatright makes two key rulings. First, proposals for settlement are not subject to the service requirements of rule 2.516 because they don’t meet the “threshold requirement” of Fla. R. Civ. P. 1.080 that they be “filed in the action.” Both section 768.79 and rule 1.442 state a proposal shall not be filed unless filing becomes necessary. In other words, they are only filed when enforced.
Second, the scope of rule 2.516, especially the mandatory email requirement, is limited by the plain language of subsection (a) to “every document filed in any court proceeding.” This Court found further support for its conclusion in subsection (d) of rule 2.516—“[a]ll documents must be filed . . . unless otherwise provided for by general law or other rules”—which excludes proposals for settlement from mandatory filing and email service under that rule.
Boatright expressly declined to apply Matte v. Caplan, 140 So. 3d 686 (Fla. 4 DCA 2014), which Plaintiffs have been relying upon to invalidate proposals for settlement across the state based upon service only. Boatright further rejected the decision of Wheaton v. Wheaton, 42 Fla. L. Weekly D411 (Fla. 3d DCA Feb. 15, 2017), and certified conflict.
Because the Boatright plaintiffs included a certificate of service that complied with rule 2.516(f) and attached their proposals for settlement in support of their motion for entitlement to fees and costs, the Second District found the proposals strictly complied with section 768.79 and rule 1.442. Where email service is not possible or desirable, or a mistake is made at the time of service, Boatright is persuasive authority that litigants should use to defend their entitlement to fees and costs pursuant to a compliant proposal for settlement.
Since Boatright certified direct conflict with Wheaton to the Florida Supreme Court, we anticipate the party will appeal to the Florida Supreme Court. However, the Florida Supreme Court’s jurisdiction is discretionary in this instance, and therefore, it is not required to take the case. In the meantime, the best course for attorneys is to continue serving proposals for settlement using your email service templates per Rule 2.516(b). It may also be wise to serve it via facsimile or U.S. Mail as well in order to prevent any argument that your office omitted a required element of the service email, such as the court name or court case number.
Click on the link to read Pt. III of: Appellate Update – Courts Reject Attempts to Nit-pick Proposals for Settlement
Click on the link to read Pt. I 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