Attorney’s Title Insurance Fund, Inc., v. Joseph W. Gorka, Et Al. (SC08-1899)

SUMMARY: 4-3 decision. The Court resolved a conflict between the 2nd DCA and 1st DCA addressing the validity and enforceability of a joint offer or proposal of settlement that is conditioned on the mutual acceptance of all joint offerees. That type of joint offer is invalid and unenforceable because it is conditioned such that neither offeree can independently evaluate or settle his or her respective claim by accepting the proposal.

Before trial, Attorneys' Title served a proposal for settlement on the respondents pursuant to section 768.79, Florida Statutes (2004), and Florida Rule of Civil Procedure 1.442, which offered a payment of $12,500 to each party in full settlement of all claimed damages, attorneys' fees, and costs. However, the proposal stated: This offer is conditioned upon the offer being accepted by both John W. Gorka and Laurel Lee Larson. In other words, the offer can only be accepted if both John W. Gorka and Laurel Lee Larson accept and neither Plaintiff can independently accept the offer without their co-plaintiff joining in the settlement. Subsequently, Attorneys‟ Title filed a motion to tax fees and costs against the respondents pursuant to the unaccepted proposal for settlement.

Section 768.79 generally creates a right to recover reasonable costs and attorney fees when a party has satisfied the terms of the statute and rule. It provides a sanction against a party who unreasonably rejects a settlement offer. In this case, the proposal for settlement was invalid and unenforceable because it was conditioned upon both of them accepting the amounts offered and specifies that neither of them may independently accept the amount offered. By so conditioning the proposal, neither Gorka nor Larson could independently settle his or her respective claim by accepting the proposal. If one wished to accept but the other elected not to accept, the acceptance would not be effective. In this scenario, the offeree who wished to accept would be exposed to the fee sanction under section 768.79 and rule 1.442 due to the conduct of the other offeree rather than as a result of his or her independent decision to reject the proposal.

Polston, Quince, and Canady dissented finding nothing in the statute or rule to prohibit this type of joint offer conditioned upon acceptance of all parties.