27 Fla. L. Weekly Supp. 301a
Online Reference: FLWSUPP 2703NEWInsurance — Attorney’s fees — Proposal for settlement — Striking — Proposal for settlement is not ambiguous for specifying one amount for damages and one amount for attorney’s fees — Court does not have authority to strike proposal that is not a pleading
NEW SMYRNA IMAGING LLC, Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2017-SC-019510-O. October 9, 2018. David P. Johnson, Judge. Counsel: Chad Andrew Barr, Altamonte Springs, for Plaintiff. Bert E. Uebele and Robert M. Lyerly, Progressive PIP House Counsel, Maitland, for Defendant.
ORDER ON PLAINTIFF’S MOTION TOSTRIKE PROPOSAL FOR SETTLEMENT
This cause having come before this court on the Plaintiff’s Motion to Strike Proposal for Settlement, and the Court having reviewed the file and being fully advised in the premises, it is ORDERED and ADJUDGED as follows:
The Plaintiff’s Motion to Strike Proposal for Settlement is DENIED. The Plaintiff filed its Motion alleging that the Defendant’s proposal for settlement “set forth two different amounts that must be accepted in order for the Plaintiff to accept the proposal for settlement.” The allegation is based on the fact that the offer contains one amount for damages and one amount for attorney’s fees. Florida courts have invalidated proposals for settlement containing differing amounts, however, the inconsistency resulted from the same amount offered for settlement changing within the document, not because the offer specified one amount for damages and one amount for attorney’s fees. See Stasio v. McManaway, 936 So.2d 676 (Fla. 5th DCA 2006) [31 Fla. L. Weekly D1998a] finding an offer that varied from fifty-nine thousand to sixty-thousand was ambiguous.
While not argued in the Motion, the Court observed that language contained in the offer summing up the aforementioned amounts and then asserting that the settlement would “not exceed” that amount unnecessarily created ambiguity in the offer. To invalidate an offer of settlement as ambiguous, the ambiguity must “reasonably affect the offeree’s decision.” See Diecidue v. Lewis 223 So.3d 1015 (Fla. 2d DCA 2017) [42 Fla. L. Weekly D376b]. The language in the instant case does not reasonably affect the offeree’s decision.
Finally, the Motion itself asks the Court to “strike” the offer of settlement. During the hearing, the Court asked counsel from both parties whether it had the authority to strike something that is not a pleading and not part of the record. Counsel for the Defendant provided the Court a case from the United States District Court, Middle District of Florida; Lancet Indemnity Group, Inc. v. Allied World Surplus Lines Ins. Co., 2016 WL 9527959 (only the Westlaw citation is currently available). The case interprets Fed. R. Civ. P. 12(f), but is considered persuasive authority on Florida state courts. In the Lancet case the court held that “Plaintiff’s Motion is procedurally improper and must be denied. Plaintiff moves to ‘strike’ Defendant’s proposal for settlement yet provides the Court with no authority for granting this form of relief. A proposal for settlement is not a ‘pleading’ and, as such, is not subject to be stricken.” Id. It is the opinion of the Court that, as in the Lancet case, the proposal for settlement in the instant case is not a pleading and is not subject to being stricken.
For the foregoing reasons, the Plaintiff’s Motion is DENIED.
