Another Proposal for Settlement Stricken Due to Inconsistent Release Attached

Proposals for Settlement

Proposals for Settlement in Florida (also known as Offers of Judgment) have a poor survival rate on appeal.  The chance is decreased, almost to zero, if the offeror mentions a release but does not attach.  Surprisingly, the offeror does not improve their chances by attaching a release.  There’s too much room for ambiguity and inconsistency between the Proposal and release.  But it keeps happening.  The Third Circuit finally calls it.

In South Florida Pool and Spa Corp. v . Sharpe Investment Land Trust Number J, etc., defendants (Pool) served plaintiff (Sharpe) with a proposal directed at the damages claim.  There was also an eviction claim.  The Proposal said that it included attorneys’ fees which are not part of the negligence count.  The release said it covers claims for damages only.  The court decided this was an ambiguity which rendered the Proposal unenforceable.

The Third DCA went on to make the broader point: “as is often the case, the release attached to the Proposal caused, rather than clarified, confusion and ambiguity.  No doubt some courts have encouraged the practice… when the offeror does include the release as part of the Proposal, great care should be taken to ensure that the release precisely and carefully mirrors the terms of the Proposal so that no discrepancy between the two documents exists.”  (see omitted footnotes in the opinion for further analysis)

Proposals for Settlement
Christopher Hopkins Speaks on Florida Proposals for Settlement: How This Fee Shifting Device Complicates Your Mediation (Florida Dispute Resolution Conference 2022)

Thanks to the Florida Dispute Resolution Center for inviting me to speak about Proposals for Settlement this year at their 2022 30th Annual Conference in Orlando. The PowerPoint for the presentation is here.

Proposals for Settlement
In Florida, Does a Lawyer Need to E-Serve a Proposal for Settlement? (Wheaton v. Wheaton)

Florida courts have long determined that the “offer of judgment” statute, Florida Statute 768.79, and the corresponding “proposal for settlement rule, Florida Rule of Civil Procedure 1.442, should be strictly construed. The problem, however, is that the “strict compliance” approach opened a pandora’s box of litigation by losing parties who …

First DCA Issues a Hybrid Opinion Re Daubert & Proposal for Settlement

Two of the more novel, confusing areas of Florida civil law were addressed this week by the First District in Andrew and Kenneth Maines v. Marcia Drasko Fox. This case arose from an auto accident where the plaintiff claimed that she suffered a neck injury.  The plaintiff won at trial. …