16 Fla. L. Weekly Supp. 1050a
Online Reference: FLWSUPP 1611KROE
Insurance — Proposal for settlement — Motion to compel enforcement of settlement agreement is denied where entry of final summary judgment terminated proposal for settlement prior to plaintiff’s acceptance of proposal
MARIE-EVE AND KENT KROENER, Plaintiffs, vs. FLORIDA INSURANCE GUARANTY ASSOCIATION, (FIGA), Defendant. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 08-13839 CACE (02). September 3, 2009. John B. Bowman, Judge. Counsel: Kathleen S. Phang-Mager. Cristian D. Valois.
AFFIRMED at 36 Fla. L. Weekly 1334a
ORDER DENYING PLAINTIFF’S MOTION TO COMPEL ENFORCEMENT OF DEFENDANT’SPROPOSAL FOR SETTLEMENT
THIS CAUSE having came on to before the Court upon the Plaintiffs Motion to Compel Enforcement of Defendant’s proposal for settlement, and the court having reviewed the file and having heard argument of counsel and being otherwise fully advised in the premises, the Court finds that:
1. Procedural History:
The Proposal for Settlement was made on June 9, 2009 by the Defendant to the Plaintiff. On June 10, 2009 the court heard a Motion for Summary Judgment, which resulted in a ruling for the Defendant. This matter was set for trial beginning August 10, 2009.
Plaintiff accepted the Proposal for Settlement in writing on June 22, 2009 by written e-mail and Defendant subsequently “withdrew” the offer thereafter. Motions for rehearing and to tax costs were filed by the respective parties on June 25, 2009. The Motion for Rehearing was denied on August 3, 2009.
2. Arguments of Counsel:
Plaintiff argues it had thirty (30) days from the offer to either accept or reject the offer, and has therefore made a timely acceptance.
Defendant argues that the favorable Summary Judgment terminated the offer, therefore making Plaintiff’s acceptance a nullity.
The Proposal for Settlement and the acceptance were each submitted under the authority of Florida Statute 768.79 and Rule 1.442.
3. Legal Analysis:
Florida Statute 768.79 and Rule 1.442 need to be read in concert with one another — 1.442(a). The statute provides a thirty (30) day window to accept or reject the offer. To be accepted, an offer must be “accepted” in writing during these thirty (30) days. The offer may be withdrawn earlier, if done so in writing before acceptance F.S. 768.79(5). Rule 1.442(b) further restricts service of an offer to no “later than forty-five (45) days before the date set for trial or the first day of the docket on which the case is set for trial, whichever is earlier”. Neither party is contesting the validity of the offer.
The issue before this court is whether an offer is terminated or “rejected” as a matter of law due to an Order of Final Summary Judgment.
This Court finds that a Proposal for Settlement is terminated by a Final Summary Judgment.
Former Rule 1.442 required a Proposal for Settlement to be filed at least ten (10) days before trial. The rule was designed to “induce a party to settle litigation and obviate the necessity of a trial” see Kennard v. Forcht, 495 So.2d 924 at 925 (4DCA 1986). The Kennard court went on to recognize that this rule created a “window of opportunity” for settlement — at that point ten (10) days. The present rule has expanded the time frame to forty-five (45) days before trial. The rationale to this court for such an extension of time is to clearly encourage settlement of cases at an even earlier stage of the proceeding such as Summary Judgment. Likewise, the same policy concerns envelope Florida Statute 768.79, as articulated in Eagleman v. Eagleman, 673 So.2d 946 at 947 (4DCA 1996). “The spirit of the offer of Judgment Statute is to encourage litigants to resolve cases early to avoid accruing substantial amounts of court costs and attorneys fees”.
Here the offer was made before a Motion for Summary Judgment was to be heard. It gave the Plaintiff the opportunity to fully consider resolution of the case before a hearing that could result in an adverse ruling. The Plaintiff had the further advantage that had the court denied the Defendant’s motion, it still could have exercised its option to accept the offer. The Plaintiff’s argument, would now seek a “no risk” approach — no matter what result was reached at the Summary Judgment hearing — the offer remains viable for the taking. This is somewhat akin to allowing a litigant to file an acceptance after a jury verdict.
The Final Summary Judgment entered constituted an end to the judicial labor. The Motion for Rehearing filed (after the Plaintiff’s “acceptance”) in this instance merely tolled the time to file an appeal. Accordingly, the Summary Judgment entered by the Court was effectively the same had a Judgment been entered in Defendant’s favor at trial.
In consideration of the foregoing, the Court hereby denies the Motion to Compel.
