Recent statistics show that Florida courts, more likely than not, strike down Proposals for Settlements on appeal. So much for encouraging settlement. In fact, such was the opinion of a sitting appellate judge. In the last year, more than half of the Florida state appellate decisions involving Proposals have stricken them. Going back further, the failure rate increases.
A May 2008 First DCA opinion provided the groundwork for the theory that Proposals are tricky little creatures. More recently, in September 2008, a conflict emerged between the First and Second DCAs. On various grounds, we’ve seen the Third and Fourth Districts recently shoot down Joint Proposals in Central Hyundai v. Shaw and Brown-Eger v. Noon. A detailed article on suggested practices and wording of Proposals for Settlement can be found under “Articles” on the right column of this website (as well as here).
The issue of joint Proposals for Settlement under Florida Statute 768.79 and Florida Rule of Civil Procedure 1.442 jumped back to life in the March 18, 2009 Fourth District opinion of Daila Cano v. Hyundai Motor America, Inc. and Guillermo Cano, where the full court (with Hazouri concurring) held that the Proposal form was not valid.
In the Cano opinion, a dispute arose over husband and wife’s purchase of a vehicle, for which a warranty lawsuit resulted. Before trial, Hyundai served the couple with a single, joint Proposal for Settlement which did not set forth the amount of money attributed to each claimant. The case went to trial but the husband was dropped as a party. Hyundai won. The trial court upheld the Proposal nonetheless, holding it was valid because the Canos’ claims were indistinguishable.
The Fourth disagreed. Under the Brower-Eger v. Noondecision, a joint proposal shall state the amount and terms attributable to each party [Fla. R. Civ. P. 1.442(c)(3)] and our Supreme Court has rejected any deviation from the strict requirements of [F.S. 768.79] and [Rule 1.442] [which lead the court to conclude that] a settlement offer made to or from to or more parties… must specify the amount attributable to each of them.”
This, the court held, was a bright line rule. Here, there were two plaintiffs and Hyundai’s Proposal failed to specify the amount attributable to each; although their claims may have been indistinguishable, it did not change the outcome. The court found there are no exceptions to the multiple-party-appportionment-rule.
Judge Hazouri echoed the First DCA’s 2005 call for the Florida Supreme Court to re-visit Rule 1.442 in order to amend it so that it less strict and more favorable to encouraging settlements.