In the case of Rosella Wilcox v. Michael Neville, Case Number 1D18-4057 (Fla. 1st DCA October 30, 2019), Florida’s First DCA held that “postoffer settlement” in section 768.79(6), Fla. Stat. means after the offer was served.
This case arose from a car accident where it was alleged that Mr. Neville’s vehicle (driven by Jason Neville) negligently struck Ms. Wilcox’s vehicle. In the litigation, Ms. Wilcox served both Jason Neville and Michael Neville with separate proposals for settlement. Michael Neville would be vicariously liable as the vehicle’s owner for Jason Neville’s negligence.
The defense accepted the proposal for settlement to Jason Neville but went to trial with regard to Michael Neville. The question in this case after trial was how to calculate the “net judgment” for purposes of establishing an entitlement to attorney fees and costs under the proposal for settlement (remember that fees and costs can be awarded if a plaintiff’s “net judgment” is greater than 25% of the amount offered in the proposal).
The insurance company for the defense argued that the settlement with Jason should not be added into the “net judgment” amount for purposes of calculating the “sanction” for losing on the proposal for settlement. If the court had adopted the defense argument, then no fees or costs would be awarded.
On the other hand, the plaintiff argued that “postoffer settlement” means any time after the offer was served and therefore should be included in the “net judgment” which would trigger an award for fees and costs. The plaintiff further argued that section 768.79, Fla. Stat. (see below) does not take into consideration the 30-day time period to accept or reject the offer.
…For purposes of the determination required by paragraph (b), the term “judgment obtained” means the amount of the net judgment entered, plus any postoffer settlement amounts by which the verdict was reduced.Section 768.79(6)(b), Fla. Stat.
No Definition of Postoffer Settlement
The Florida Legislature does not appear to have defined “postoffer settlement” or even the term “postoffer” in section 768.69, Fla. Stat. However, it does make sense that “postoffer” should mean any time after the offer is served rather than allowing a “grace period” to accept. As such, the law does not say “after the expiration of a proposal for settlement or offer of judgment.”
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