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Clear and Unambiguous Language Rules the Day—“Postoffer Settlement” includes all Settlements after Proposal for Settlement is Offered when Determining Plaintiff’s Entitlement to Fees

Jan 3, 2020 in Case Law Updates by

In Wilcox v. Neville, 44 Fla. L. Weekly D2651 (Fla. 1st DCA 2019), the Florida First District Court of Appeals (“the Court”) held that “postoffer settlement,” when determining Plaintiff’s entitlement to fees under Fla. Stat. § 768.76(6), includes all settlements after a proposal for settlement (“PFS”) is offered, not only settlements after the expiration of the time for accepting the offer.

Appellant, Rosella Wilcox filed a complaint against Jason Neville (“Jason”) and Appellee, Michael Neville, for damages based on a 2015 motor vehicle accident. Id. Pursuant to Fla. Stat § 768.79 and Florida Rule of Civil Procedure 1.442, on May 2, 2017, Appellant offered a PFS to each defendant. Id. On May 17, 2017, Jason accepted the PFS to resolve the claim against him for $60,400. Id. Appellee allowed the PFS to expire and the parties proceeded to trial.  The jury returned a verdict for Appellant in the amount of $126,592.33. Id.

Subsequently, Appellant moved for an award of attorney’s fees and costs pursuant to § 768.79 and rule 1.442. Id. The parties agreed that Appellee was entitled to set-offs for Personal Injury Protection benefits and the settlement with Jason, and they agreed on the amount of the final judgment to be entered for Appellant. Id. However, they disagreed about Appellant’s entitlement to attorney’s fees based on their conflicting interpretation of the phrase “postoffer settlement” in § 768.79(6). Id. Specifically, the disputed issue was whether Jason’s acceptance of Appellant’s PFS constituted a “postoffer settlement” that should be added to the net judgment under § 768.79(6). Id.

The trial court denied Appellant’s motion for attorney’s fees and costs. Id. The trial court reasoned that the net judgment was $58,865.73, which resulted from the applicable deductions. Id. If Jason’s settlement was added back to the net judgment as a “postoffer settlement,” the judgment obtained would be $119,265.73, which figure would exceed $112,000.00, (25% more than the $89,600.00 PFS offered to Appellee), thereby entitling Appellant to statutory fees and costs. Id. The trial court found that Jason’s settlement during Appellee’s thirty-day acceptance period was not a postoffer settlement. Id.

Pursuant to Fla. Stat. § 768.79(1), a PFS is to remain open and valid for an opposing party’s consideration a full 30 days.  The trial court explained that taken literally, “[Appellant]’s proposed rule would bar a similarly situated Defendant from the statutory opportunity to evaluate a co-defendant’s decision to accept or reject another PFS during the same 30 day statutory period.” Id.

Appellant timely appealed the order. Id.

Fla. Stat. § 768.76(6), provides in pertinent part:

(b)          If a plaintiff serves an offer which is not accepted by the defendant, and if the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer, the plaintiff shall be awarded reasonable costs . . . .

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.

On appeal, the Court explained that the polestar of statutory interpretation is legislative intent, which is to be determined by first looking at the actual language used in the statute. Id. (citing Searycy, Denney, Scarola, Barnhart & Shipley v. State, 209 So. 3d 1181, 1189 (Fla. 2017).  If the statutory language is clear and unambiguous, courts must give the statute its plain and obvious meaning.  In order to determine the plain meaning of the words used in the statute, the Court turned to their dictionary definition. Id.

Accordingly, the Court found that the plain meaning of “postoffer” was “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. Id. As such, we interpret ‘postoffer settlement’ to mean settlement reached any time after the service of the offer.” Id.

The Court did not find persuasive the trial court’s reasoning that a contrary interpretation [of “postoffer settlement”] would eliminate the statutory requirement that every offer remain open for consideration for a full thirty days. Id. The Court explained that interpreting “postoffer” literally to mean “after the offer” does not eliminate the thirty-day window. Id. A co-defendant’s acceptance of an independent offer has no bearing on the defendant’s acceptance period. Id. While a plaintiff’s settlement with a co-defendant likely factors into a defendant’s decision on whether to accept an offer, it has no bearing on the options and timeframes available to him. Id.

Thus, the clear and unambiguous language of 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. The trial court was required to add the $60,400 settlement amount to the net judgment in calculating the judgment obtained and determining Appellant’s entitlement to fees.

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