11 Fla. L. Weekly Supp. 819a

Attorney’s fees — Proposal for settlement — Defendant against whom all claims were dismissed seeks attorney’s fees against subrogee of plaintiff who rejected offer of judgment — Subrogee that was not party to suit and was not named in or served with demand for judgment is not liable for attorney’s fees — Even if subrogee had been found to be party to suit or named in and served with demand for judgment, defendant would not be able to collect fees from subrogee because offer of judgment was invalid under rule 1.442 — Offer that is inconsistent by requiring execution of full and final release and stipulation for dismissal while also stating that there are no non-monetary terms of proposal is not valid under rule 1.442

BEVERLY FOSTER, individually and as Personal Representative of the Estate of ANGELA FOSTER, Plaintiff, v. ANDRE WAYNE CHUNG, MIAMI MANAGEMENT INC., NISSAN MOTOR ACCEPTANCE CORP., Defendants. THE RESIDENCES OF SAWGRASS MILLS COMMUNITY ASSOCIATION, INC., Third-party Plaintiff, v. MIAMI MANAGEMENT, INC., Third-party Defendant. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 95-012128(09). June 9, 2004. Robert Lance Andrews, Judge.ORDER

THIS CAUSE having come before the Court upon Defendant, Miami Management’s Motion to Tax Attorney Fees, and the Court having considered same, having heard argument of counsel, and otherwise being duly advised in premises, finds and decides as follows:

The Third Party Plaintiff, Residences of Sawgrass Mills Community Association, Inc. filed a Third Party Complaint against Miami Management Inc., seeking contribution in count I, common law indemnification in count II, and contractual indemnification in count III. Miami Management served Residences with a Proposal for Settlement, which Residences rejected. The court dismissed all of the claims. Miami Management is now seeking to tax attorney fees against Regis Insurance Company, subrogee of Residences, pursuant to Fla. Stat. §768.79, which provides in pertinent part that:

in any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award.

Regis opposes the motion, claiming they were neither a party to the suit nor named in the Proposal for Settlement. This Court agrees.

Florida Statute §768.79(b) and Fla. R. Civ. Pro. 1.442(c)(2)(A) set out the requirements that a proposal for settlement must name the “party” to whom it is made and must be served upon that party. Miami Management seeks an award of attorney’s fees against Regis based on a proposal for settlement that named and was served on “The Residences of Sawgrass Mills Community Association, Inc.”

Florida courts have consistently held that third-parties who are not offered a Proposal for Settlement cannot be required to pay attorney’s fees. Meyer v. Alexandre, 772 So. 2d 627 (Fla. 4th DCA 2000); see also Feltzin v. Bernard, 719 So. 2d 315, 316 (Fla. 3d DCA 1998) (court held that since insurer was not a party and was not served with a proposal for settlement, they cannot be held responsible for attorney’s fees); Sparks v. Barnes, 755 So. 2d 718 (Fla. 2d DCA 1999) (court refused to allow appellee to move for attorney’s fees against the appellant’s insurer due to the fact the insurer was not named in the proposal for dismissal and due to a lack of contractual relationship).

Here, Regis was not a party to the suit, nor was Regis delivered a demand for judgment. The Proposal for Settlement clearly states that the proposal is being made by Miami Management to Residences. Further, the offer for judgment that the third party plaintiffs rejected did not include Regis. Therefore, Regis is not liable for attorney’s fees.

Even if Regis was found to be a party to the suit or named in and served with the demand for judgment, Miami Management would still not be able to collect attorney’s fees from them. The offer for judgment is not valid under Rule 1.442 and, therefore, cannot be the basis for a motion to tax attorney’s fees.

Rule 1.442(2) requires that the proposal state the total amount of the proposal and state with particularity all nonmonetary terms of the proposal. It also requires that the proposal state with particularity any relevant conditions. In Jamieson v. Kurland, 819 So. 2d 267 (Fla. 2d DCA 2002), the court held that an inconsistent and ambiguous offer did not meet these requirements. In that case, an offer of settlement had one paragraph which listed several relevant conditions — that the parties execute a joint stipulation for dismissal with prejudice, that plaintiff execute a general release, and that a confidentiality agreement be part of the release. However, the following paragraph provided: “There are no non-monetary terms of the Proposal for Settlement.” Id. at 268. The court stated that the intention of the rule is to make proposals be as “specific as possible, leaving no ambiguities so that the recipient can fully evaluate its terms and conditions.” Id. at 269. The court found that the proposal created too much confusion, preventing the recipient from fully analyzing its terms. This lack of clarity, the court ruled, deemed the proposal invalid. Id. at 269.

In this case, the Proposal for Settlement contained similar inconsistencies. Paragraph 3(a) of the proposal requires that the Residences execute a full and final release of Miami Management. The following section of Paragraph 3 adds that Residences’ counsel must execute an appropriate stipulation for dismissal of the lawsuit against Miami Management. However, Paragraph 4 states that the total amount of the Proposal for Settlement is $10,000 and that there are no non-monetary terms of the proposal. This creates the same contradictions found in the Jamieson proposal. The recipient cannot fully evaluate the proposal, defeating the intentions of Rule 1.442. This leads the court to hold that the Proposal for Settlement that was delivered to Residences was not a valid proposal under Rule 1.442.

Accordingly, it is hereby

ORDERED AND ADJUDGED that Third-party Defendant’s Motion to Tax Attorney’s Fees, pursuant to §768.79 Florida Statutes and Rule 1.442 Florida Rules of Civil Procedure is DENIED.

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