1.442 Proposals for Settlement

- Section (c)(2)(B) has been amended to reflect changes effective January 1, 2014 -

(a) Applicability. This rule applies to all proposals for settlement authorized by Florida law, regardless of the terms used to refer to such offers, demands, or proposals, and supersedes all other provisions of the rules and statutes that may be inconsistent with this rule.

(b) Service of Proposal. A proposal to a defendant shall be served no earlier than 90 days after service of process on that defendant; a proposal to a plaintiff shall be served no earlier than 90 days after the action has been commenced. No proposal shall be served later than 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.

(c) Form and Content of Proposal for Settlement.

(1) A proposal shall be in writing and shall identify the applicable Florida law under which it is being made.

(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) 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, subject to subdivision (F);

(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.

(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.

(4) Notwithstanding subdivision (c)(3), when a party is alleged to be solely vicariously, constructively, derivatively, or technically liable, whether by operation of law or by contract, a joint proposal made by or served on such a party need not state the apportionment or contribution as to that party. Acceptance by any party shall be without prejudice to rights of contribution or indemnity.

(d) Service and Filing. 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.

(e) Withdrawal. A proposal may be withdrawn in writing provided the written withdrawal is delivered before a written acceptance is delivered. Once withdrawn, a proposal is void.

(f) Acceptance and Rejection.

(1) A proposal shall be deemed rejected unless accepted by delivery of a written notice of acceptance within 30 days after service of the proposal. The provisions of Florida Rule of Judicial Administration 2.514(b) do not apply to this subdivision. No oral communications shall constitute an acceptance, rejection, or counteroffer under the provisions of this rule.

(2) In any case in which the existence of a class is alleged, the time for acceptance of a proposal for settlement is extended to 30 days after the date the order granting or denying certification is filed.

(g) Sanctions. Any party seeking sanctions pursuant to applicable Florida law, based on the failure of the proposal’s recipient to accept a proposal, shall do so by serving a motion in accordance with rule 1.525.

(h) Costs and Fees.

(1) If a party is entitled to costs and fees pursuant to applicable Florida law, the court may, in its discretion, determine that a proposal was not made in good faith. In such case, the court may disallow an award of costs and attorneys’ fees.

(2) When determining the reasonableness of the amount of an award of attorneys’ fees pursuant to this section, the court shall consider, along with all other relevant criteria, the following factors:

(A) The then-apparent merit or lack of merit in the claim.

(B) The number and nature of proposals made by the parties.

(C) The closeness of questions of fact and law at issue.

(D) Whether the party making the proposal had unreasonably refused to furnish information necessary to evaluate the reasonableness of the proposal.

(E) Whether the suit was in the nature of a test case presenting questions of far-reaching importance affecting nonparties.

(F) The amount of the additional delay cost and expense that the party making the proposal reasonably would be expected to incur if the litigation were to be prolonged.

(i) Evidence of Proposal. Evidence of a proposal or acceptance thereof is admissible only in proceedings to enforce an accepted proposal or to determine the imposition of sanctions.

(j) Effect of Mediation. Mediation shall have no effect on the dates during which parties are permitted to make or accept a proposal for settlement under the terms of the rule.

Committee Notes

2012 Amendment. Subdivision (c)(2)(G) is amended to reflect the relocation of the service rule from rule 1.080 to Fla. R. Jud. Admin. 2.516.

2013 Amendment. Subdivision (c)(2)(B) is amended 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.

8 Cases on Florida Rule of Civil Procedure 1.442 Proposals for Settlement

  1. Case Cite: Eastern Atlantic Realty and Investment Inc. v. GSOMR LLC, and Biscayne Joint Venture, Ltd., 34 Fla. L. Wkly d1294a (Fla. 3d DCA June 24, 2009) | Florida Rules Decisions Reporter

    This opinion addressed the enforceability of an offer of judgment and whether it was ambiguous. The body of the offer listed two defendants, but the offer stated that payment would be made by only one defendant. Despite the discrepancy, the court found the offer of judgment to be unambiguous and therefore enforceable.

  2. Case Cite: Gloria Alioto-Alexander v. Toll Bros., Inc., and John Barr, 34 Fla. L. Wkly D1383a (Fla. 4th DCA July 8, 2009) | Florida Rules Decisions Reporter

    In this case, there were two defendants. One defendant served an offer of judgment requesting a dismissal of both defendants in return for $5,000. The offer did not apportion the $5,000 offer between the two defendants. Defendants prevailed, and the trial court awarded attorneys’ fees. The Fourth District affirmed the fee award, holding that the offer was not a “joint offer” because it was an offer by only one defendant that simply requested that both defendants be dismissed. Therefore, no apportionment was required.

  3. Case Cite: Jose Milton vs. John Reyes, 34 Fla. L. Wkly D2050a (Fla 3d DCA Oct. 7, 2009) | Florida Rules Decisions Reporter

    the trial court denied plaintiff’s motion for attorneys’ fees pursuant to an offer of judgment because it did not include a certificate of service, although it was accompanied by a “Notice of Service of Proposal for Settlement” that did in fact include a proper certificate of service. Citing Campbell v. Goldman, 959 So. 2d 223 (Fla. 2007), the appellate court held that proposals for settlement are in derogation of the common law and therefore must be strictly construed. Because Rule 1.442 requires that the proposal itself contain a certificate of service, the order denying the fee award was affirmed.

  4. Case Cite: Palm Beach Polo Holdings, Inc. v. Equestrian Club Estates Property Owners Assoc., Inc. (Fla. 4th DCA Nov. 18, 2009) | Florida Rules Decisions Reporter

    In this case, a property owner sued a homeowner’s association for injunctive and declaratory relief seeking access to a landlocked lot of land, as well as for damages for an alleged tortious interference of the owner’s attempt to sell the lot. The association successfully defended the case, and the trial court awarded attorneys’ fees based upon offers of judgment covering “all claims” – including non-economic claims – in the litigation.

    The appellate court reversed, holding that the damages claim did not convert the case into “an action for damages” that would permit an attorneys’ fee award under s. 768.79

  5. Case Cite: Attorneys’ Title Insurance Fund, Inc. v. Gorka, 35 Fla. L. Weekly S196 (Fla. April 1, 2010) | Florida Rules Decisions Reporter

    The Florida Supreme Court found that a joint offer of settlement cannot be conditioned on the mutual consent of all joint offerees. The case came before the Court after Attorneys’ Title served an offer of judgment on Plaintiffs Gorka and Larson. The offer was conditioned on the Plaintiffs mutual acceptance and neither party could independently accept the offer. The Fla. Sup. Ct.concluded that such mutual proposals are invalid since neither party can exercise independent control over the decision to end litigation.

  6. Case Cite: Nationwide Mut. Fire Ins. Co. v. Lawrence Pollinger, 35 Fla. L. Wkly D1866d (Fla. 4th DCA Aug. 18, 2010) | Florida Rules Decisions Reporter

    In this auto accident case, the defendant insurer hired two law firms: one to defend a claim for personal injury protection (PIP) and another to defend a claim for uninsured motorist benefits (UM). The law firm defending the UM claim served a proposal for settlement appearing to cover all claims. The trial court declined to award fees. It found the offer ambiguous because there were two law firms involved and it was unclear whether the proposal covered the PIP claim in addition to the UM claim. The Fourth District affirmed, agreeing with the trial court that the situation created a latent ambiguity.

  7. Case Cite: Offer of Judgment Not Valid in Case With Monetary and Non-monetary Claims – Horowitch v. Diamond Aircraft Indus., Inc. | Florida Rules Decisions Reporter

    . . . The Florida Supreme Court determined that Diamond Aircraft was not entitled to recover its attorneys’ fees because “section 768.79 does not apply to cases that seek both equitable relief and damages.” The court left open the door open to the use of an offer that was intended to settle only the monetary portion of the lawsuit, rather than the entire claim.

  8. Case Cite: Effective Immediately – You Do Not Get Extra 5 Days for Mailing of Proposal for Settlement | Florida Rules Decisions Reporter

    The Florida Supreme Court has amended Florida Rule of Civil Procedure 1.442 to clarify that you do not get an additional five days to respond to a proposal for settlement […]

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