Florida Statute 768.79 addresses a Party's right to collect attorney’s fees and costs as a penalty against an opposing party for their failure to accept an offer and resolve the pending litigation. Florida Rule of Civil Procedure 1.442 provides the structure and elements to assert a claim for attorney’s fees and costs and establishes the proper procedure for enforcement of Florida Statute 768.79.
A recent decision from the 4th District Court of Appeal of Florida addressed those procedures and rendered a Parties Proposal for Settlement invalid. See Ziadie v. Feldbaum, So.3d, 37 FLW D794b (Fla. 4th DCA 4/4/2012). In the Ziadie case the defendant conditioned the acceptance of a proposal for settlement on the plaintiff’s signing of a release, indemnity agreement, or confidentiality agreement but failed to provide or disclose those documents at the time the proposal for settlement was made. The Court of Appeals held that failure to attach these documents or include their terms in the proposal will render the proposal invalid under rule 1.442c(2), because the rule request that settlement proposals to “state with particularity any relevant conditions” and “non-monetary terms.”
This case is of particular importance when dealing with insurance disputes and personal injury cases. Often times an insurance company who is defending against a property claim from their own insured (sinkhole, hurricane, flood, etc.) or an insurance company representing an at fault driver will demand that settlement be conditioned upon the execution of a release or indemnity agreement. In these cases it is also often the case that a proposal for settlement is extended at some point in the litigation. Each proposal for settlement should be reviewed carefully by the personal injury attorney to ensure that the defendant has complied with the Rules of Civil Procedure and all relevant case law.