Appellate Update – Proposal for Settlements: To Apportion or Not to Apportion?

October 17, 2016 by on News

Saterbo v. Markuson, 2016 Fla. App. LEXIS 14107 (Fla. 2d DCA September 21, 2016) arises out of an automobile accident.  The plaintiff filed an action for negligence against the driver and the driver’s father, who owned the vehicle, and a UM claim against the son’s insurer.

Prior to trial, the plaintiff served a proposal for settlement on both the father and the son offering to settle all claims made against both, in return for a payment of $1.5 million.  The proposal did not apportion the amount of money due from each defendant.  The defendants rejected the proposal.

After a jury trial, a verdict was entered for the plaintiff.  The jury found the son’s negligence was the cause of the plaintiff’s loss.  Though there was only a single verdict form, the court entered two final judgments, one against the father and son jointly and severally for 600,000, and a second against the son individually for $2.4 million, for a combined total of $3 million.  The father and son appealed.  The plaintiff filed a motion for appellate attorney’s fees based on his proposal for settlement that was made to both father and son. In the motion, the plaintiff only asked for attorney’s fees from the son and his insurer.  The Second District affirmed without opinion and granted the plaintiff’s motion for attorney’s fees contingent upon the trial court’s determination of entitlement.

The plaintiff then sought appellate fees and costs in the trial court.  The trial court granted the motion for costs, but determined the plaintiff was not entitled to an award of appellate attorney’s fees.  The court reasoned that, per the exception in Florida Rule of Civil Procedure 1.442(c), the father was not solely vicariously liable for the direct claims made against the son due to the statutory cap, thus the plaintiff’s proposal for settlement failed to strictly comply with rule 1.442.  The court also determined the proposal for settlement was ambiguous and lacked particularity because it failed to account for the father’s liability cap pursuant to section 324.021, Florida Statutes.  Thus, the father and son would have to speculate regarding their exposure due to the cap on the father’s liability.

The Plaintiff sought relief on appeal.  The Second District disagreed with the trial court’s application of rule 1.442.  It reasoned that the focus on the exception in the rule is not whether a party is liable for the full amount of damages, but rather, whether the claims against the party are direct claims or solely claims of vicarious or other indirect liability.  The Court noted that the proposal offered to settle all claims against both the father and son and the only claim made against the father was for vicarious liability.  Thus, the Court determined that apportionment was, therefore, unnecessary under rule 1.442 and the plaintiff’s proposal was sufficient.

The Court also disagreed that the proposal was ambiguous and lacked particularity.  It reasoned that the only claim against the father was vicarious, and capped by statute.  The applicability of the statutory cap was never at issue.  The court concluded that the son was not precluded from making an informed decision because the son was liable for the entire amount of damages and because the father would have had the right to seek contribution or indemnity from the son for any damages that the son obligated himself to pay above the statutory cap. Accordingly, the Court disapproved of the court’s order relating to the award of attorney’s fees and remanded for the trial court to determine the amount of appellate attorney’s fees.

This case demonstrates the complexity of serving a valid proposal for settlement where there are multiple defendants.  Where one of the defendants is solely vicariously liable, the rule does not require apportionment.  However, if there is a direct claim against that defendant, such as one for negligent supervision, then apportionment is necessary.

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

Kansas R. Gooden
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Appellate Practice Group Leader
Direct: 904.493.3755
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Loreyn P. Raab
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