26 Fla. L. Weekly Supp. 989a
Online Reference: FLWSUPP 2612DINGInsurance — Personal injury protection — Attorney’s fees — Proposal for settlement — Because mandatory email service requirement in rule 2.516(b)(1) is not applicable to pretrial proposal for settlement, fact that proposal does not indicate service on secondary email address of medical provider’s attorney does not render proposal invalid — Where there is typographical error in email address listed in proposal’s certificate of service, insurer is not entitled to presumption of valid service of proposal — However, where evidence from insurer’s email archiver indicates that proposal was sent to proper email address, court finds that provider received notice of proposal — Insurer is not required to prove that proposal was received by provider, only that it was served — Despite typographical errors in email addresses listed in certificates of service on motions for attorney’s fees and notice of filing proposal for settlement, where e-filing portal reflects service on proper email addresses, insurer complied with service requirements — Rule 1.442 did not require insurer to attach proposal for settlement to motion for attorney’s fees or otherwise file proposal within 30 days after filing of judgment — Ambiguity — Fact that proposal does not track language of rule 1.442 by including phrase “all damages that would otherwise be awarded in final judgment in the action” does not render proposal invalid or ambiguous — Language in proposal seeking to resolve “any and all claims which plaintiff…has or could have asserted in this action” is not overbroad or ambiguous — Nominal proposal was made in good faith
CRESPO AND ASSOCIATES, P.A., a/a/o Christina Dingus, Plaintiff(s), v. GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY Defendant(s). County Court, 13th Judicial Circuit in and for Hillsborough County. Civil Division. Case No. 14-CC-024155. Division: H. January 23, 2019. Alissa M. Ellison, Judge. Counsel: Anthony T. Prieto, Morgan & Morgan, P.A., Tampa, for Plaintiffs. Randall A. Wainoris, Dutton Law Group, P.A., Tampa, for Defendants.
ORDER GRANTING DEFENDANT’S ENTITLEMENTTO ATTORNEY’S FEES AND COSTS
THIS CAUSE came before the Court on Defendant’s Motions to Tax Attorney’s Fees and Costs. After considering the evidence, the legal memorandums filed by the parties, and the court file, the Court finds as follows:
Factual Background
On August 15, 2014, Plaintiff filed suit against Defendant for Personal Injury Protection (“PIP”) benefits as assignee of Defendant’s insured, Christina Dingus. On November 18, 2014, Defendant served a Proposal for Settlement. In compliance with Rule 1.442, Florida Rule of Civil Procedure, the actual Proposal for Settlement itself was not filed with the Court at the time it was served. However, Defendant did file a Notice of Serving Proposal for Settlement. The Proposal for Settlement was not accepted.
After significant litigation and almost two years later, on July 12, 2016, this Court entered Summary Final Judgment for Defendant. Plaintiff quickly filed a Motion for Rehearing two days later on July 14, 2016. Defendant subsequently filed a Motion to Tax Attorney’s Fees and Costs on July 21, 2016 (the “First Motion for Attorney’s Fees”). While the First Motion for Attorney’s Fees sought an order awarding Defendant its attorney’s fees based on Plaintiff’s rejection of its Proposal for Settlement, a copy was not attached thereto.
Subsequently, on August 2, 2017, a hearing was held on Plaintiff’s Motion for Rehearing. On September 14, 2017, the Court entered an Order Denying Plaintiff’s Motion for Rehearing. Defendant filed another Motion to Tax Attorney’s Fees and Costs (the “Second Motion for Attorney’s Fees”) on September 19, 2017. The Second Motion for Attorney’s Fees was based on Plaintiff’s rejection of the Proposal for Settlement and once again did not include a copy of the Proposal for Settlement.
The Proposal for Settlement itself was filed on October 16, 2017. By its stated terms, the Proposal sought to resolve “any and all claims, which Plaintiff, CRESPO AND ASSOCIATES a/a/o Christina Dingus, has or could have asserted in this action against Defendant, GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY” for the total amount of $1.00. As a condition, if accepted, the Proposal also required Plaintiff to file a dismissal with prejudice.
On September 17, 2018, this Court held a hearing on Plaintiff’s entitlement to fees and costs. Although Plaintiff initially failed to file any response to Plaintiff’s Motions for Attorney’s Fees, Plaintiff’s counsel asserted at the hearing — for the very first time — that he did not receive the Proposal for Settlement. Specifically, Plaintiff’s counsel pointed out that the email address on the certificates of service on the Proposal for Settlement and Notice of Serving Proposal for Settlement, anthonyprieto@prietoprietogoan.com, was not Plaintiff’s counsel’s email address.1 Despite the fact that the hearing was not scheduled as an evidentiary hearing, Plaintiff’s counsel offered testimony as to this point.
As a result of Plaintiff’s new argument and last-minute submission of evidence, the Court declined to rule at the hearing and, instead, afforded the parties the opportunity to submit any additional evidence as to the service of the Proposal for Settlement within two weeks. The Court did not authorize any additional legal argument and, rather, was concerned only with whether the Proposal for Settlement was properly served upon Plaintiff’s counsel given the typographical errors on the face of the certificate of service.
Despite this directive, on September 28, 2018, Plaintiff filed a thirty-one (31) page Post-Hearing Memorandum and Evidence in Opposition to Defendant’s Entitlement to Attorney’s Fees and Costs (“Plaintiff’s Post-Hearing Brief”). Plaintiff’s Post-Hearing Brief was replete with arguments that were not raised or even alluded to at the hearing. Plaintiff’s Post-Hearing Brief also included the Affidavit of Anthony Prieto, who consistent with his previous testimony, stated under oath that anthonyprieto@prietoprietogoan.com “is not, and never has been, a valid email address associated in any way with me or my firm.” See Aff. Anthony Prieto, Esq. ¶ 4. The Affidavit further stated that Mr. Prieto has “no recollection and no record of being served with a copy of the Defendant’s Proposal for Settlement dated November 18, 2014, or the Defendant’s Notice of Serving Proposal for Settlement which was filed with the Court on November 18, 2014.” Mr. Prieto’s recollection is that he “did not first receive the proposal for settlement until on or about October 16, 2017” when the Proposal was ultimately filed in the Court file. Id. at ¶ 5.
Also on September 28, 2018, Defendant filed the Affidavit of Michael Roberts in support of its Motions for Attorney’s Fees. See Aff. Michael Roberts ¶ 4. Mr. Roberts is responsible for Dutton Law Group’s computers, servers, and email systems.
On October 1, 2018, Defendant filed a Motion to Strike Plaintiff’s Post-Hearing Brief as it raised new arguments and exceeded the scope of what this Court authorized the parties to file. This Court ultimately entered an Order allowing Defendant an opportunity to respond to Plaintiff’s Post-Hearing Brief. Accordingly, on October 16, 2018, Defendant filed its Response to Plaintiff’s Post-Hearing Memorandum in Opposition to Defendant’s Entitlement to Attorney’s Fees (“Defendant’s Response Brief”). This matter is now ripe for adjudication.
DiscussionPlaintiff was Served with the Notice of Serving Proposal forSettlement, the Proposal for Settlement, the Motions forAttorney’s Fees, and the Notice of Filing Proposal for Settlement
In opposition to Defendant’s Motions to Tax Attorney’s Fees, Plaintiff raises issues relative to the service of the initial Proposal for Settlement (not originally filed with the Court in accordance with rule 1.442), the Notice of Serving Proposal for Settlement, the two Motions for Attorney’s Fees, and the October 16, 2017 Notice of Filing Proposal for Settlement. The issues raised by Plaintiff include both misspellings/typos in the email addresses in the various certificates of service and Defendant’s purported failure to comply with the requirements of Florida Rule of Judicial Administration 2.516. Plaintiff argues that these errors render the Proposal and Motions invalid and/or untimely.
With regard to service of the Proposal for Settlement, Plaintiff advances two arguments: first, Plaintiff contends the email address for Attorney Prieto contained within the certificate of service is incorrect; and second, Plaintiff’s avers the Proposal does not indicate service on the secondary email address that had been designated at the time pursuant to rule 2.516. The Court first addresses Plaintiff’s argument that Defendant failed to comply with rule 2.516 when serving the Proposal for Settlement by not indicating service on the designated secondary email address. The Second District Court of Appeal has addressed the application of rule 2.516 to pretrial proposals for settlement. In Boatright v. Philip Morris USA Inc., the Second District concluded that “[t]he mandatory e-mail service requirement in rule 2.516(b)(1) does not apply to pretrial proposals for settlement.” 218 So. 3d 962, 971 (Fla. 2d DCA 2017) [42 Fla. L. Weekly D842a]. The proposition espoused in Boatright was recently approved by the Florida Supreme Court in Wheaton v. Wheaton, __ So. 3d __, 2019 WL 99109 (Fla. Jan. 4, 2019) [44 Fla. L. Weekly S94a].2 Moreover, it has also been held that:
[w]here a party has actual notice of an offer of settlement,3 and the offering party has satisfied the requirements of section 768.79 on entitlement, to deny recovery because the initial offer was not e-mailed is to allow the procedural tail to wag the substantive dog.
McCoy v. R.J. Reynolds Tobacco Co., 229 So. 3d 827 (Fla. 4th DCA 2017) [42 Fla. L. Weekly D2281a]. Taken together, Boatright, Wheaton, and McCoy stand for the proposition that Defendant need only show service of the proposal as required by the proposal for settlement rule — strict compliance with rule 2.516 is not required for proposals for settlement.
The Court now turns to Plaintiff’s argument regarding the error in the email address listed in the certificate of service. The November 18, 2014 certificate of service shows service to only one email address, anthonyprieto@prietoprietogoan.com, which is not (and was not) a valid email address for Attorney Anthony Prieto. See Aff. Anthony Prieto, Esq. ¶ 4. Attorney Prieto’s proper email address is anthony@prietoprietogoan.com. Because the email address for Attorney Prieto in the certificate of service for the Proposal is incorrect, Defendant does not receive the presumption of valid service for the Proposal. However, the Court finds that what amounts to a typographical error in the certificate of service will not void the Proposal for Settlement if Defendant is able to prove through other competent evidence that service of the Proposal was, in fact, effectuated.
As discussed above, after the hearing in this matter, and with permission of the Court to submit additional evidence relative to the issues presented at the hearing, the Defendant filed the Affidavit of Michael Roberts, the individual responsible for Dutton Law Group, P.A.’s IT, computers, servers, and email system. See Aff. Michael Roberts ¶ 4. The Affidavit of Michael Roberts indicates that the firm’s archiver captures every email sent by Dutton Law Group. After performing a search of the archiver, Mr. Roberts located an email sent on November 18, 2014 to Attorney Prieto’s proper email address — anthony@prietoprietogoan.com — that included PDF copies of both the Notice of Serving Proposal for Settlement and the Proposal for Settlement itself. See id. at ¶¶ 5-15. Additionally, the Affidavit notes an additional search did not indicate that the Dutton Law Group received any notification that delivery failed relative to the November 18, 2014 email. See id. at ¶¶ 16-19. Accordingly, the Court finds that the evidence before it reflects that the November 18, 2014 Proposal for Settlement was properly served, as required by rule 1.442, on anthony@prietoprietogoan.com, one of the designated email addresses for Plaintiff, despite the error in the certificate of service. Thus, Plaintiff received notice of the Proposal.
Plaintiff also argues that there is no evidence that Plaintiff’s counsel ever received the November 18, 2014 Notice of Serving Proposal for Settlement and accompanying Proposal for Settlement. See Pl.’s Post-Hearing Memorandum and Evidence in Opposition to Defendant’s Entitlement to Attorney’s Fees and Costs ¶¶ 19-20 (Oct. 1, 2018). However, rule 1.442 does not necessitate that a party prove a document was received by the opposing party. Rather, it indicates that “[a] proposal shall be served on the party or parties to whom it is made but shall not be filed unless necessary to enforce the provisions of this rule.” (Emphasis added). For the reasons stated above, the Court finds Defendant has shown service on Plaintiff as required by the rule.
The September 14, 2017 email chain between Attorney Prieto and Attorney Wainoris further reflects knowledge/notice of the Proposal for Settlement. In the September 14, 2017 email Attorney Prieto asks for a copy of the PFS because he is unable to locate it in the file and cannot search his emails that far back. Notably, Plaintiff never claimed that he did not receive the Proposal in the email in response to the Motions for Attorney’s Fees which both referenced the Proposal. Rather, Plaintiff failed to raise the issue of not receiving or not being served with the Proposal until the September 17, 2018 hearing. Consequently, the Plaintiff has failed to show any prejudice arising from the typographical errors in the certificate of service of the proposal.
With regard to the Notice of Serving Proposal for Settlement, Plaintiff argues the certificate of service suffers from the same infirmities as the Proposal itself and, as such, provides an additional basis for denying entitlement to attorney’s fees in this matter. The Court first notes that a notice of service is not required by the relevant proposal for settlement rule or statute. On that basis, the Court finds that any lack of strict compliance with regard to service of the Notice of Service in and of itself would not provide a sufficient basis to strike the Proposal or otherwise deny entitlement to attorney’s fees in this matter. Regardless, as noted above, the evidence before the Court indicates that, like the Proposal for Settlement, the Notice of Serving Proposal for Settlement was emailed to Attorney Prieto’s correct email address, thus providing actual notice that the Proposal had been issued. See Aff. Michael Roberts ¶ 5-15. The Court also notes that the Notice of Service also contains an e-filing notation for November 18, 2014 at 11:41:38 a.m.
Concerning the service of the Motions for Attorney’s Fees and the Notice of Filing Proposal for Settlement, Plaintiff argues that the documents were not properly served on Plaintiff’s secondary email address. Each of these filings includes the correct primary email address in the certificate of service. However, the secondary email address listed in the certificates of service contained two misspellings.4 The secondary email address was listed as jessica@preitopreietogoan.com rather than jessica@prietoprietogoan.com in the certificates of service. Plaintiff argues that, because the certificates of service on the two Motions and the Notice of Filing contain these errors, the documents were not served in accordance with rule 2.516 and, in addition, the Motions for Attorney’s Fees were also therefore untimely under rule 1.525. Plaintiff avers these are both fatal errors precluding Defendant’s claim for attorney’s fees and costs.
As noted above, because the secondary email address listed in the certificates of service was incorrect, Defendant does not receive the presumption of valid service. However, the Court finds that typographical errors in the certificates of service will not be fatal to Defendant’s claim of attorney’s fees and costs if the Defendant is able to prove through other competent evidence that service of the documents was, in fact, effectuated. Service of the documents — notice — is what is required by the rule, not necessarily a “perfect,” typo-free certificate of service.
Significantly, the evidence before the Court reflects that both Motions and the Notice of Filing were served using the Florida Courts e-filing Portal. The service email for the First Motion for Attorney’s Fees shows service to Amy@prietoprietogoan.com, Jessica@PrietoPrietoGoan.com, anthony@prietoprietogoan.com, and jessica@prietoprietogoan.com. The service email for the Second Motion for Attorney’s Fees and the Notice of Filing the Proposal for Settlement shows service to asullivan@forthepeople.com, jnickerson@forthepeopole.com, anthony@prietoprietogoan.com, jessica@prietoprietogoan.com, dcaldevilla@dgfirm.com, and serviceclerk@dgfirm.com. See Aff. of Randall Wainoris ¶¶ 7-10, exhibits B, C, & D. The e-filing Portal confirmation emails reflect service on the proper secondary email address jessica@prietoprietogoan.com, in addition to the correct primary email address. Rule 2.516(b)(1) provides that a party has complied with the rule “if the Florida Courts e-filing Portal (“Portal”) . . . served the document by e-mail or provided a link by e-mail to the document on a website maintained by a clerk (“e-Service”).” This is exactly what occurred in this case. As such, the Court finds that Defendant complied with the service requirements of rule 2.516 by perfecting service of the documents using the e-filing portal.
Even if Defendant had failed to strictly comply with Florida Rule of Judicial Administration 2.516, that does not necessarily dictate that the motions should be stricken. While strict compliance is required with regard to rule 1.442 and the substance of the proposal for settlement, adherence to rule 2.516, is not held to the same standard. The requirements of rule 2.516 are in place to ensure notice to parties and provide adequate opportunity to respond and be heard. In this case, even if there was a lack of strict compliance with rule 2.516, this Court finds that does not automatically render the Motion(s) void or untimely. See Henderson-Bullard v. Lockard, 204 So. 3d 568, 569-570 (Fla. 5th DCA 2016) [41 Fla. L. Weekly D2613a] (stating “lack of strict compliance with the service requirements set forth in rule 2.516 does not render a judgment void, particularly when a party receives notice of the proceedings”).
In conclusion, under the particular circumstances of this case, invalidating Defendant’s Proposal for Settlement and Motions for Attorney’s Fees and Costs for what essentially amounts to typos in the certificates of service is an extreme, harsh sanction that is not warranted. While the certificates of service undeniably contained typographical errors, the evidence before the Court reflects that the Proposal for Settlement was served as required and the First Motion for Attorney’s Fees was timely filed and served.5 There is no indication that any potential failure to strictly comply with rule 2.516 resulted in prejudice to the Plaintiff. The purpose of service is notice and there is simply nothing in the record to suggest that the Plaintiff was not served with or was not on notice of any of these documents.
Defendant was not Required to Attach the Proposalfor Settlement to the Motions to Tax Attorney’s Feesor to Otherwise File the Proposal within 30 Days
Plaintiff also argues in its Post-Hearing Brief the Proposal for Settlement should have been attached to the Motions for Attorney’s Fees. In support of this argument, Plaintiffs cites to Florida Statutes § 768.79(4) and rule 1.442(d), which provide that a proposal for settlement shall not be filed “unless necessary to enforce the provisions of this rule.” Rule 1.442(g) then states that a proposal for settlement is enforced “by serving a motion in accordance with rule 1.525.” In turn, rule 1.525 requires “[a]ny party seeking a judgment taxing costs, attorney’s fees, or both shall serve a motion no later than 30 days after filing the judgment . . . .” Plaintiff argues that rule 1.442(d) and (g) should be read together with rule 1.525 to require the proposal and the motion to be filed simultaneously within the applicable 30 day deadline found in rule 1.525.
Plaintiff is correct the thirty-day time frame in Rule 1.525 was not tolled by Plaintiff’s Motion for Rehearing and the First Motion for Attorney’s Fees is outcome determinative. However, it is undisputed that Defendant filed its First Motion for Attorney’s Fees within 30-days of the rendition of the Summary Final Judgment. Accordingly, the issue remaining before this Court on this point is whether rule 1.442 also required the Proposal for Settlement to be attached to the First Motion for Attorney’s Fees or otherwise filed within 30 days.
First, there is nothing in rule 1.422(d) or (g) which explicitly requires a proposal to be filed simultaneous with a motion for attorney’s fees or within 30 days of the filing of a judgment. The rule simply states that a proposal shall not be filed unless necessary to enforce the rule. The Rule then requires a party to file a motion in accordance with rule 1.525. Similarly, rule 1.525 does not require a motion for attorney’s fees to attach a copy of the document giving rise to the basis for entitlement (whether a contract or proposal for settlement) to the motion. This Court is not inclined to add language to the rules that does not exist.
Next, Plaintiff’s reliance on Boatright to support its argument is misplaced. As discussed earlier, the issue presented in Boatright was whether proposals for settlement are subject to the service requirements of rule 2.516, Florida Rules of Judicial Administration. In holding that proposals for settlement are not subject to the requirements of rule 2.516, the Second District first noted that the Boatrights did not file their proposal until they sought to enforce them and then stated:
There is also no dispute that the Boatrights attached their proposals to their motion to tax attorneys’ fees and costs. Therefore, the Boatrights strictly complied with section 768.79 and rule 1.442.
Id. at 965.
Boatright clearly notes the proposal was attached to the motion for attorneys’ fees when it was filed. What Boatright does not say, however, is that a proposal for settlement must be filed along with a motion for attorney’s fees or within the 30 day time period provided for in rule 1.525 in order to be in comply with § 768.79 and rule 1.442. There is similarly no statement in Boatright that a proposal for settlement cannot be filed separate and apart from a motion for attorney’s fees. Accordingly, this Court is not persuaded that these two sentences in Boatright establish a bright-line rule requiring a proposal to be attached to a motion to establish entitlement to attorney’s fees and costs. Thus, this Court rejects Plaintiff’s argument that Boatright dictates a finding that Plaintiff’s Motion for Attorney’s Fees is insufficient or invalid on this basis.
The Proposal for Settlement Does not Violate Rule 1.442(c)(2)(B)
Plaintiff argues that the Proposal for Settlement violates rule 1.442(c)(2)(B) because it does not track the precise language in rule 1.442. Plaintiff also argues that the Proposal is overbroad and ambiguous in that it seeks to resolve any claims which Plaintiff “has or could have asserted.” Both arguments are addressed below.
This Court will first address Plaintiff’s argument that the Proposal does not track the exact language of rule 1.442(c)(2)(B). Rule 1.442(c)(2)(B) provides that a proposal shall “state that the proposal resolves all damages that would otherwise be awarded in a final judgment in the action in which the proposal is served . . . .” The Proposal for Settlement at issue in this case provides, in pertinent part:
2. This Proposal is intended to resolve any and all claims, which Plaintiff . . . has or could have asserted in this action against Defendant . . .
* * *
4. The relevant conditions of this Proposal are that upon acceptance, the Plaintiff . . . will file a voluntary dismissal with prejudice as to the Defendant . . .
Plaintiff argues that because the words “all damages that would otherwise be awarded in a final judgment” do not appear anywhere in the Proposal, it is invalid.
At the outset, it must be noted that rule 1.442(c)(2)(B) was amended effective January 1, 2014. Prior to the January 1, 2014 amendment, rule 1.442(c)(2)(B) required a proposal to “identify the claim or claims the proposal is attempting to resolve.” The stated purpose of the amendment was “to clarify that a proposal for settlement must resolve all claims between the proponent and the party to whom the proposal is made except claims for attorneys’ fees, which may or may not be resolved in the proposal.” Fla. R. Civ. P. 1.442 (Committee Notes, 2013 Amendment). The Florida Supreme Court also found the amendment necessary to comport with Florida Statute § 768.79(2), which states “[t]he offer shall be construed as including all damages which may be awarded in a final judgment.”
Courts have held the language in a proposal does not have to be identical to the text of rule 1.442. For example, in American Home Assurance Co. v. D’Agostino, 211 So. 3d 63, 66 (Fla. 4th DCA 2017) [42 Fla. L. Weekly D113a],6 the Fourth District Court of Appeal found that a post-amendment proposal using the word “claims” as opposed to “damages” did not render a proposal for settlement unenforceable:
Although we would expect any post-amendment proposal for settlement would use the post-amendment word “damages” instead of the pre-amendment word “claims”, we do not construe the amendment as suggesting that any post-amendment proposal for settlement which uses the word “claims” instead of “damages” automatically invalidates the proposal or renders it ambiguous. Moreover, the defendant here plainly did not offer a partial proposal for settlement, and thus the rationale supporting the 2014 amendment was not jeopardized.
Id. at 66.
Similarly, in Polk County v. Highlands-in-the-Woods, L.L.C., 227 So. 3d 161 (Fla. 2d DCA 2017) [42 Fla. L. Weekly D1135c], the Second District considered a proposal intended to resolve “all claims” as opposed to all “damages” and explicitly found that the “general statement of the claims to be resolved was sufficient to include all damages that would otherwise be awarded in a final judgment” as required by Rule 1.442(c)(2)(B). Id. at 163. In sum, that the Proposal for Settlement here did not include the phrase “all damages that would otherwise be awarded in a final judgment in the action” does not automatically render the Proposal invalid or ambiguous and more general language can satisfy rule 1.442(c)(2)(B).
Next, the Proposal is not overbroad or ambiguous. Although it is axiomatic that a proposal must strictly conform to the requirements of rule 1.442, the Florida Supreme Court has recognized that:
[G]iven the nature of language, it may be impossible to eliminate all ambiguity. The rule does not demand the impossible. It merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification. If ambiguity within the proposal could reasonably affect the offeree’s decision, the proposal will not satisfy the particularity requirement.
State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006) [31 Fla. L. Weekly S358a]. As such, elimination of “every ambiguity” is not required, rather only the elimination of “reasonable ambiguity” is required. Anderson v. Hilton Hotels Corp., 202 So. 3d 846, 852 (Fla. 2016) [41 Fla. L. Weekly S500a]. In this vein, the Florida Supreme Court has consistently discouraged courts from “nitpicking” proposals for settlement to find ambiguity. Anderson, 202 So. 3d at 853 (citing Carey-All Transp., Inc. v. Newby, 989 So. 2d 1201 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D1973a]); Nichols, 932 So. 2d at 1079. A proposal is not truly ambiguous “unless a genuine inconsistency, uncertainty, or ambiguity in meaning remains after resort to the ordinary rules of construction.” Alamo Fin., L.P. v. Mazoff, 112 So. 3d 626, 630 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D902a].
Courts have held that proposals seeking to resolve “all claims” is not ambiguous and is sufficient to satisfy the requirements of rule 1.442(c)(2)(B). Notably, the Second District Court of Appeal has held that “[a] proposal that seeks to resolve all claims identified in the complaint or in a certain count can be sufficient under rule 1.442(c)(2)(B).” Bright House Networks, LLC v. Cassidy, 242 So. 3d 456 (Fla. 2d DCA 2018) [43 Fla. L. Weekly D654a]. In Cassidy, the Second District Court of Appeal determined that a Proposal intending “to settle and otherwise fully and completely resolve all claims asserted by Offeree against Offeror in this action”7 and requiring the offeree to “dismiss with prejudice . . . all claims against the Offeror” was not ambiguous and was enforceable. Cassidy is consistent with the Second District’s previous opinion in Miley v. Nash, 171 So. 3d 145 (Fla. 2d DCA 2015) [40 Fla. L. Weekly D1589d], which likewise found that a proposal addressing “all claims and causes of action resulting from the incident or accident giving rise to the lawsuit brought by Plaintiff Martha Nash against Defendant . . .” satisfied rule 1.442.8 In Highlands-in-the-Woods, the Second District once again found that a proposal seeking to resolve all claims and requiring a dismissal with prejudice was sufficient and held that had it been accepted, “there would have been no need for judicial interpretation of its terms.” Highlands-in-the-Woods, 227 So. 3d at 163 (citing Nichols, 932 So. 2d at 1079).
In Anderson, the Florida Supreme Court also held that a proposal seeking to settle “any and all claims made in this case” was sufficient. Anderson, 202 So. 3d at 849, 854-856. The same holding was just recently reached by the Florida Supreme Court in Allen v. Nunez, __ So. 3d __ 2018 WL 4784606 (Fla. Oct. 4, 2018) [43 Fla. L. Weekly S421a]. See also North v. LHB Realty, L.L.C., 2013 WL 2431875 (M.D. Fla. 2013) (granting motion for attorney’s fees based on a proposal seeking to resolve “all claims” and rejecting the argument that the mere use of “broad phrases such as ‘all claims, causes of action, etc.’ is ambiguous.”).
Thus, there is ample support for the proposition that a proposal seeking to resolve “all claims” can be sufficient. However, Plaintiff argues that, by seeking to resolve “any and all claims which Plaintiff . . . has or could have asserted in this action against Defendant,” Defendant sought to resolve claims that had not yet been raised. Plaintiff claims that this language renders the Proposal for Settlement overbroad and ambiguous. Russell Post Properties v. Leaders Bank, 159 So. 3d 348, 349 (Fla. 3d DCA 2015) [40 Fla. L. Weekly D619b] is instructive as to this point. In Russell Post Properties, the Third District considered a proposal which, similar to the Proposal for Settlement presented here, sought to release “any and all claims made by or which may have been made” by the Plaintiff against Defendant and required Plaintiff to “dismiss with prejudice any and all claims it may have against [Defendant] and shall execute a general release in favor of [Defendant].” Id. at 350 (emphasis in original). The Third District explicitly held that the language complied with rule 1.442(c)(2)(B) and even stated “[w]e are unable to divine what ‘clarification’ (Plaintiff) might have needed to decide whether to accept the offer of settlement made to it in this case.” Id.9
Similarly, in Land & Sea Petroleum v. Business Specialists, Inc., 53 So. 3d 348 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D136d], the Fourth District Court of Appeal held that a proposal made for the purpose of “resolving all claims as well as any and all claims that could have been or should have been brought by Plaintiff” was not ambiguous, was enforceable, and complied with the rule 1.442(c)(2)(B). Id. at 353. Notably, the language used in the proposal at the center of Land & Sea Petroleum was even broader than the language at issue in this case as it was not limited to the claims which were raised or could have been raised “in this action.” Regardless, the Fourth District still found the proposal to be in compliance with Rule 1.442(c)(2)(B) and stated that it was “unmoved” by the argument that the proposal did not clarify whether it was limited to the claims presented in the action as opposed to future claims, noting that it was aware of only one relationship between the parties.10 The Fourth District found this fact to be one that distinguished Land & Sea Petroleum from “other cases which have found proposals for settlement to be deficient where the proposals may have extinguished other pending related claims.” Id. Under the authority of Russell Post Properties and Land & Sea Petroleum, this Court rejects Plaintiff’s argument that the language in the Proposal is overbroad or ambiguous and finds the Proposal to be sufficient.
This Court notes that Land & Sea Petroleum was decided under the pre-amendment version of Rule 1.442(c)(2)(B). However, Land & Sea Petroleum has been cited with approval and relied upon by the Florida Supreme Court in both Anderson and Allen in interpreting Rule 1.442(c)(2)(B) as amended. Therefore, this Court sees no reason to depart from or disregard the holding in Land & Sea Petroleum and finds it to be binding.
Plaintiff relies on Nationwide Mut. Fire Ins. Co. v. Pollinger, 42 So. 3d 890 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D1866d] to support its position. However, the facts in Pollinger are distinguishable from those presented here. In Pollinger, the Fourth District found a latent ambiguity in the proposal because two different law firms had been retained by the defendants to defend different claims. Thus, the Fourth District found a “reasonable ambiguity” as to which claims the offer — which was only extended by one of the law firms — sought to resolve. Id. at 892. No such latent ambiguity exists here. Additionally, as discussed above, the Fourth District has routinely and recently upheld proposals similar to the one presented here. See D’Agostino, 211 So. 3d 63; Land & Sea Petroleum, 53 So. 3d 348.
It is also significant that, as a condition, the Proposal for Settlement required Plaintiff to file a dismissal with prejudice. By virtue of this condition, if the Proposal for Settlement had been accepted, Plaintiff would have been barred by the doctrine of res judicata from subsequently re-litigating any claims that were raised or could have been raised in this action. Neapolitan Enterprises, LLC v. City of Naples, 185 So. 3d 585 (Fla. 2d DCA 2016) [41 Fla. L. Weekly D299a]. This requirement is consistent with the language of paragraph 2 of the Proposal. In fact, the Third District held in Russell Post Properties that a requirement of a dismissal with prejudice is the equivalent to a full release, thereby alleviating any ambiguity. Id. Consequently, the Court finds that there was no ambiguity as to what the Proposal for Settlement sought to resolve.
Lastly, the Court notes that the “rationale supporting the 2014 amendment was not jeopardized” by the language included in the Proposal as it sought to resolve all claims between the parties. D’Agostino, 211 So. 3d at 66.
In conclusion, the Court determines that the Proposal for Settlement is valid, is not ambiguous, and comports with the requirements of Rule 1.442(c)(2)(B).
Defendant’s Proposal Was Made in Good Faith
Plaintiff also argues that the Proposal was not made in good faith because: (1) it was for a nominal amount; and (2) the Defendant was not forthcoming with discovery. However, “ ‘[o]ffers are not suspect merely because they are nominal.’ ” Land & Sea Petroleum, 53 So. 3d at 354 (citing State Farm Mut. Auto Ins. So v. Sharkey, 928 So. 2d 1263, 1264 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D1445a]); see also State Farm Mut. Auto. Ins. Co. v. Marko, 695 So. 2d 874, 876 (Fla. 2d DCA 1997) [22 Fla. L. Weekly D1505c] ($1.00 offer in uninsured motorist case was made in good faith); Allstate Ins. Co. v. Silow, 714 So. 2d 647 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D1765a]; Weesner v. United Services Auto. Ass’n, 711 So. 2d 1192 (Fla. 5th DCA 1998) [23 Fla. L. Weekly D1049a]. This is especially true when the offeror had a reasonable basis to conclude that exposure would be nominal. Gawtrey v. Hayward, 50 So. 3d 739, 742-743 (Fla. 2d DCA 2010) [35 Fla. L. Weekly D2886a]; Citizens Property Ins. Corp. v. Perez, 164 So. 3d 1 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D1271c]. This Court also finds no basis to determine that the Proposal was not made in good faith due to ongoing and incomplete discovery. As such, the Court finds Defendant’s Proposal for Settlement was made in good faith.
Based on the above, Defendant’s First Motion for Attorney’s Fees is hereby GRANTED. The parties are directed to submit and comply with this Court’s Order on Requirements Preliminary to Hearing on Motion to Tax Attorney’s Fees and Costs.
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1Counsel’s correct email address at that time was anthony@prietoprietogoan.com.
2The opinion in Wheaton has not been released for publication and, thus, is still subject to revision or withdrawal.
3As will be discussed below, Plaintiff received actual notice of both the Notice of Serving Proposal for Settlement and the Proposal itself.
4In addition to the primary and secondary email addresses, the Notice of Filing Proposal for Settlement also includes two additional email addresses. No issues have been raised as to service on the third and fourth email addresses.
5As will be discussed below, it is the First Motion for Attorney’s Fees that controls the outcome of this issue as the thirty-day time frame found in rule 1.525 was not tolled by Plaintiff’s Motion for Rehearing.
6Like the Proposal here, the proposal at issue in D’Agostino sought to resolve all “claims.” Id. at 64.
7The facts in Cassidy were somewhat more convoluted than those presented here as there were multiple Plaintiffs yet the proposal was directed at a single plaintiff. Despite this fact, after the trial court held that the proposal was ambiguous, the Second District reversed, finding that the proposal did not contain a level of ambiguity so as to invalidate it.
8Like Cassidy, the facts surrounding the proposal at issue in Miley was more complicated than those presented here as Martha Nash’s husband had filed a separate count for loss of consortium. The Second District nevertheless rejected the plaintiff’s argument that the proposal was ambiguous, finding the proposal was directed at Martha Nash only and the proposal “did not contain a level of ambiguity that would render Martha Nash unable to ‘make an informed decision without needing clarification.’ ” Miley, 171 So. 3d at 148 (citing Nichols, 932 So. 2d at 1079.
9It is unclear if the offer made in Russell Post Properties was after the 2014 amendment to Rule 1.442 or prior to same.
10There is also only one single relationship between the parties at issue in this case.
