Florida’s Proposal for Settlement and Offer of Judgment rules are delineated in Fla. Stat. § 786.79 and Fla. R. Civ. P. 1.442. See Anderson v. Hilton Hotels Corp., 202 So. 3d 846, 852 (Fla. 2016); see also Wilcox v. Neville, No. 1D18-4057, 2019 Fla. App. LEXIS 16394, at *5 (Fla. 1st DCA 2019). An offer that complies with these provisions creates a mandatory right to collect attorney’s fees, unless the offer is made in bad faith. Furthermore, if plaintiff serves an offer which is not accepted by defendant, and the judgment obtained by plaintiff is at least 25 percent more than the offer, plaintiff shall be awarded reasonable costs and attorney’s fees. “Judgment obtained” means the amount of the net judgment entered, plus any postoffer settlement amounts by which the verdict was reduced. A party’s entitlement to fees depends on the judgment obtained, not the jury’s verdict, and that entitlement is for postoffer attorney’s fees and costs. Most parties in Florida get confused as to the divergent interpretation of the phrase “postoffer settlement” and “postoffer” in Fla. Stat. § 768.79(6) because the Legislature did not define said terms.
The plaintiff in Wilcox v. Neville, initially filed a complaint against two defendants: the driver and the owner of the defendants’ motor vehicle. On May 2, 2017, Plaintiff filed a notice of serving a Proposal for Settlement (“PFS”) as to each defendant for $89,600 to the driver and $60,400 to the owner. So, in order for plaintiff to be entitled to attorney’s fees and costs, the judgment obtained by plaintiff as to her PFS directed toward defendant driver must exceed $112,000 (25 percent more than the $89,600 offer). On May 17, 2017, defendant owner timely filed a notice of acceptance of plaintiff’s PFS to resolve his claim for $60,400, and plaintiff dismissed her claim against him. Defendant driver allowed his PFS to expire and the parties proceeded to trial. The jury returned a verdict in plaintiff’s favor in the amount of $126,592.33, and the district court denied plaintiff’s motion for attorney’s fees and costs because the verdict was reduced to $58,865.73 due to agreed-to set-offs, such as PIP benefits received by plaintiff; the trial court ruled that the defendant owner’s timely acceptance of plaintiff’s PFS was not a postoffer settlement because if it were, said interpretation would eliminate the statutory requirement that every offer remain open for consideration for a full thirty days. The parties disagreed about plaintiff’s entitlement to attorney’s fees based on the divergent interpretation of the phase “postoffer settlement” in Fla. Stat. § 768.79(6). Precisely, the dispositive issue to be resolved was whether defendant owner’s acceptance of plaintiff’s proposal for settlement constituted a “postoffer settlement” that should have been added to the net judgment ($58,865.73). The First District Court of Appeals answered in the affirmative, that said acceptance should be added to the net judgment.
In Wilcox, the First District Court of Appeals ruled that the plain meaning of “postoffer” means, “to be after the offer; that is, after the act of presenting something for acceptance or displaying a willingness to enter into a contract on specified terms.” No. 1D18-4057 at 7. Furthermore, the First District Court of Appeals defined “postoffer settlement” as a “settlement reached any time after the service of the offer.” The appellate court ruled that a co-defendant’s independent acceptance of an offer has no bearing on the defendant’s acceptance period, and therefore, Fla. Stat. § 768.79(6) requires the judgment obtained to include the amount of any settlement by a co-defendant after the date of service of the offer on the defendant by which the verdict was reduced. For example, if there are two defendants, and defendant 1 is served with a proposal for settlement that is rejected through lapse of time (30 days), and subsequently defendant 2 settles, that amount of settlement will be included in the net judgment, or judgment obtained, for purposes of determining whether or not plaintiff would be entitled to attorney’s fees and costs pursuant to Fla. Stat. § 786.79 and Fla. R. Civ. P. 1.442.