18 Fla. L. Weekly Supp. 873a

Online Reference: FLWSUPP 1809PARK

Insurance — Homeowners — Settlement agreement — Enforcement — Where insurer named only homeowner as party to whom proposal for settlement was made without inclusion of mortgagee, homeowner’s motion to enforce settlement is granted to extent that insurer’s check must be made payable to homeowner only — Ruling does not absolve homeowner of agreement with mortgagee that insurance proceeds must be applied to repair property

ROBERT PARKER, Plaintiff, v. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. Circuit Court, 6th Judicial Circuit in and for Pasco County. Case No. 51-2009-CA-10396-WS/G. April 26, 2011. Stanley R. Mills, Judge.

ORDER

This matter came before the court on April 15, 2011, upon the Plaintiff’s Motion to Enforce Settlement. The court has had the benefit of the arguments of counsel. Based on the foregoing, it is

ORDERED as follows:

1. There seems to be little disagreement about the facts. Citizens initially denied Plaintiff’s homeowner’s insurance claim. Plaintiff filed suit against Citizens, but the mortgagee was never made a party. Citizens served a Proposal for Settlement directed only to Plaintiff, containing nothing about including the mortgagee or anyone else on the check. Plaintiff formally accepted the proposed settlement agreement on December 22, 2010. Citizens did not raise the issue of including the mortgagee’s name on the settlement check until well after the formal acceptance of the Proposal for Settlement. On February 1, 2011, Plaintiff responded in a letter that since the proposal specifically referenced payment to Plaintiff only, and was accepted on that basis, the mortgagee should not be included. Citizens nonetheless issued a check to both Plaintiff and the mortgagee. Plaintiff subsequently filed a motion to enforce the settlement agreement.

2. In pertinent part, Rule 1.442 states the following:

(2) A proposal shall:

(A) name the party or parties making the proposal and the party or parties to whom the proposal is being made;

(B) identify the claim or claims the proposal is attempting to resolve;

(C) state with particularity any relevant conditions;

(D) state the total amount of the proposal and state with particularity all nonmonetary terms of the proposal;

(E) state with particularity the amount proposed to settle a claim for punitive damages, if any;

(F) state whether the proposal includes attorneys’ fees and whether attorneys’ fees are part of the legal claim; and

(G) include a certificate of service in the form required by rule 1.080(f).

(3) A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party. (emphasis supplied).

3. While the court is not particularly comfortable with this ruling, it is clear that Citizens did not specify the conditions and nonmonetary terms of the Proposal for Settlement in question. Additionally, Citizens named only Plaintiff as the party to whom the proposal was being made.

4. Furthermore, a party’s performance under a contract is not excused on the basis of unilateral mistake when the mistake is the result of the party’s own carelessness or lack of foresight. See, Limehouse v. Smith, 797 So. 2d 15, 17 (Fla. 4th DCA 2010) [26 Fla. L. Weekly D1924a]. Citizens has not argued mistake, but has, instead, argued that there was not a meeting of the minds. While Citizens could have included clear and unambiguous language that any payments would have to be made jointly to Plaintiff and the mortgagee, it did not. Presumably, Citizens’ failure to include such language was a mistake in its drafting of the settlement offer. Citizens should not be allowed to rescind the agreement because of its own unilateral mistake.

5. Based upon the foregoing, the Defendant’s Motion to Enforce Settlement is hereby GRANTED to the extent that the check must be made payable to Plaintiff; however, the court notes that the granting of this motion in no way absolves Plaintiff of his agreement with the mortgagee that any settlement proceeds must be applied to repair the property. In the unlikely event that Plaintiff might be tempted to spend the settlement money in some manner inconsistent with said agreement, he should be reminded that he could find himself charged with grand theft of insurance proceeds, as in Russ v. State, 830 So. 2d 268 (Fla. 1st DCA 2002) [27 Fla. L. Weekly D2538a].