Troy Anderson v. Hilton Hotels Corporation, etc. , 41 Fla. L. Weekly Supp. 500 ( 2016 )

Supreme Court of Florida
____________
No. SC15-124
____________
TROY ANDERSON,
Petitioner,
vs.
HILTON HOTELS CORPORATION, etc., et al.
Respondents.
[November 3, 2016]
LEWIS, J.
Petitioner Troy Anderson seeks review of the decision of the Fifth District
Court of Appeal in Hilton Hotels Corp. v. Anderson, 153 So. 3d 412 (Fla. 5th DCA
2014), on the ground that it expressly and directly conflicts with decisions of the
Second and Fourth District Courts of Appeal on a question of law. We have
jurisdiction. See art. V, § 3(b)(3), Fla. Const.
FACTS AND PROCEDURAL HISTORY
On September 26, 2008, Anderson was the victim of an armed robbery,
carjacking, and shooting that occurred in the parking lot of an Embassy Suites
hotel in Orlando. Anderson filed an action against Respondents Hilton Hotels
Corporation (Hilton), W2007 Equity Inns Realty, LLC (W2007), Interstate
Management Company, LLC (Interstate), and SecurAmerica, LLC for negligence.
Hilton was the parent company of the Embassy Suites franchise; W2007, an
investment fund, owned the Embassy Suites hotel where Anderson was attacked;
Interstate was the management company that oversaw daily operations of the hotel
and hired SecurAmerica to provide security services for the hotel. Anderson’s
wife, Paula Anderson, also sought damages from the Respondents for loss of
consortium.
In October 2011, Anderson proposed separate offers of settlement to Hilton,
W2007, and Interstate. He made a separate offer to SecurAmerica in March 2012.
Anderson offered to settle his claims with Hilton for $650,000, W2007 for
$100,000, Interstate for $650,000, and SecurAmerica for $300,000. The offer
made to Hilton, in its entirety, stated:
PROPOSAL FOR SETTLEMENT ON BEHALF OF PLAINTIFF,
TROY [ANDERSON], PURSUANT TO RULE 1.442
Plaintiff, TROY ANDERSON, by and through his undersigned
attorneys, hereby serves his Proposal for Settlement, pursuant to Rule
1.442 of the Florida Rules of Civil Procedure, to Defendant, HILTON
HOTELS CORPORATION, a foreign corporation, doing business as
EMBASSY SUITES ORLANDO AT INTERNATIONAL DRIVE
AND JAMAICAN COURT, also doing business as HILTON
WORLDWIDE, and states in support thereof as follows:
1. This Proposal for Settlement is made pursuant to Florida Statute
§768.79, and is extended in accordance with the provisions of Rule
1.442. Fla.R.Civ.P.
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2. This Proposal for Settlement is made on behalf of Plaintiff, TROY
ANDERSON (“PLAINTIFF”), and is made to Defendant, HILTON
HOTELS CORPORATION, a foreign corporation, doing business as
EMBASSY SUITES ORLANDO AT INTERNATIONAL DRIVE
AND JAMAICAN COURT, also doing business as HILTON
WORLDWIDE (“HILTON”).
3. This Proposal for Settlement is made for the purpose of settling
any and all claims made in this cause by PLAINTIFF against
HILTON.
4. That in exchange for SIX HUNDRED FIFTY THOUSAND AND
00/100 DOLLARS ($650,000.00) in hand paid from HILTON,
PLAINTIFF agrees to settle any and all claims asserted against
HILTON, as identified in Case Number 2009-CA-040473-O, brought
in the Circuit Court in and for Orange County, Florida.
5. This Proposal for Settlement is inclusive of all damages claimed by
PLAINTIFF, including all claims for interest, costs, and expenses and
any claims for attorney’s fees.
Other than the specifically designated Respondent and the specific amount
proposed, the offers to Hilton, W2007, Interstate, and SecurAmerica were
identical.
Additionally, in October 2011, Paula Anderson made separate offers to each
of the Respondents to settle her loss of consortium claim. Her offers were $15,000
from Hilton, $15,000 from W2007, $25,000 from Interstate, and $25,000 from
SecurAmerica. Her offers were identical to those of Anderson, other than the
name of the specifically identified Plaintiff, the specifically identified Respondent,
and the specific amount proposed. Prior to trial, however, Paula voluntarily
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dismissed her cause of action without prejudice, and Anderson proceeded against
each of the respective Respondents alone.
Following one mistrial, the parties commenced a second trial in October
2012. Attorneys from a single legal firm represented Hilton, W2007, and
Interstate, while attorneys from a separate firm represented SecurAmerica.
Throughout both trials, for ease of reference, Hilton, W2007, and Interstate were
collectively referred to as “Embassy Suites.” For example, following jury
selection, the jury was informed that the defendants were “Embassy Suites” and
SecurAmerica, despite the fact that “Embassy Suites” was not specifically named
as a party in Anderson’s amended complaint upon which the parties proceeded to
trial. At one point during trial, the jury even submitted a question to the court,
asking, “What is Interstate?” The parties submitted testimony from witnesses who
explained the relationships between Hilton, W2007, Interstate, and SecurAmerica.
Near the close of the trial, when discussing jury instructions and closing
statements, an attorney from the single firm representing Hilton, W2007, and
Interstate stated: “[W]e believe it would be appropriate, and certainly less
cumbersome throughout the instructions to simply talk about our client as Embassy
Suites, rather than the larger definition that they use, or reference they use
throughout their instructions,” referring to the three defendants as one and the
same. Anderson’s attorneys agreed to use that term. Anderson’s attorney also
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proposed instructions pertaining to agency or vicarious liability, but counsel for
Hilton, W2007, and Interstate objected to that instruction: “I don’t think it’s
necessary to do that. And the way the jury instructions are set up, it’s identifying
Embassy Suites as, effectively, all of our group of defendants. There’s really no
reason to have a special instruction concerning agency.” Anderson’s counsel
agreed collectively to refer to those defendants as “Embassy Suites” without
further instructing the jury on agency or vicarious liability. The court read the jury
the following instruction:
Members of the jury, you can assume, for purposes of your
deliberation, that Interstate Hotel and Resorts, Inc., Hilton Hotels
Corporation, and W2007 Equity Inns Realty, LLC, are considered one
and the same. These defendants will be referred to in the jury
instructions and verdict form as Embassy Suites.
The jury found “Embassy Suites” and SecurAmerica to be negligent for
Anderson’s injuries and that Anderson was not comparatively negligent. The jury
further found that “Embassy Suites” was 72% negligent, and SecurAmerica was
28% negligent. Ultimately, the jury found that Anderson sustained a total of
$1,702,066 in damages. The trial court entered judgment in favor of Anderson and
against Hilton, W2007, and Interstate “collectively hereinafter referred to as
EMBASSY SUITES pursuant to the Verdict form agreed to by Plaintiff and all
Defendants” in the amount of $1,225,487.52, and against SecurAmerica in the
amount of $476,578.48.
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Anderson then sought attorneys’ fees pursuant to section 768.79, Florida
Statutes, and Florida Rule of Civil Procedure 1.442. The trial court denied
Anderson’s motion, finding that Anderson failed to request a verdict assigning
separate findings of fault among Hilton, W2007, and Interstate. Respondents
appealed the award of damages to Anderson, and Anderson separately appealed the
trial court’s denial of attorneys’ fees. Hilton Hotels, 153 So. 3d at 414. The Fifth
District consolidated the appeals and affirmed the decisions of the trial court;
however, the district court’s opinion only addressed Anderson’s appeal of the
denial of attorneys’ fees. Id. Anderson argued that he was entitled to attorneys’
fees pursuant to section 768.79 and Rule 1.442 because his offers of settlement
satisfied the requirements of the statute and rule. Id. at 415-16. However, both the
trial court and the district court disagreed, concluding that the term “PLAINTIFF”
in Anderson’s offer could reasonably be interpreted to include both Anderson and
his wife, Paula.
The Fifth District relied on its earlier decision, Hibbard ex rel. Carr v.
McGraw, 918 So. 2d 967 (Fla. 5th DCA 2005), for support. Hilton Hotels, 153 So.
3d at 416. In Hibbard, Amanda Carr was a minor who was involved in an
automobile accident with Michael McGraw. Hilton, 153 So. 3d at 416. Carr’s
mother, Faith Hibbard, sued McGraw and his employer, Dual Incorporated, on
Carr’s behalf. Id. The defendants jointly offered a proposal of settlement in favor
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of Carr to settle “all claims against Defendants, MICHAEL MCGRAW and DUAL
INCORPORATED.” Id. (citing Hibbard, 918 So. 2d at 969). The Fifth District
ultimately determined that this proposal was ambiguous because it could have been
reasonably construed to settle either Carr’s claim separately or the claims of both
Carr and Hibbard. Id. (citing Hibbard, 918 So. 2d 971-72). Likewise, the Fifth
District below determined that Anderson’s proposal lacked sufficient clarity
regarding whether it settled only Anderson’s claim or both Anderson’s and Paula’s
claims. Id.
Finally, the district court cursorily agreed with the trial court that
Anderson’s separate proposals were unenforceable for the purpose of obtaining
attorneys’ fees:
Because Anderson requested to have these three entities treated as one
by the jury, and given that the judgment obtained against the
“Embassy Suites” defendants was actually less than the sum of the
demands for judgment made against them, the purpose behind the
enactment of section 768.79 (i.e., to sanction a party for rejecting a
presumptively reasonable proposal for settlement) would be ill-served
by assessing attorney’s fees against Hilton, W2007, and Interstate.
Id. at 416-17.
This review follows.
ANALYSIS
Whether Anderson’s Proposed Offer of Settlement Was Ambiguous
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Attorneys’ fees under offers of judgment are governed by section 768.79,
Florida Statutes (2011), and Florida Rule of Civil Procedure 1.442. In relevant
part, section 768.79 reads:
(1) In any civil action for damages filed in the courts of this
state . . . [i]f a plaintiff files a demand for judgment which is not
accepted by the defendant within 30 days and the plaintiff recovers a
judgment in an amount at least 25 percent greater than the offer, she
or he shall be entitled to recover reasonable costs and attorney’s fees
incurred from the date of the filing of the demand. . . .
(2) The making of an offer of settlement which is not accepted
does not preclude the making of a subsequent offer. An offer must:
(a) Be in writing and state that it is being made pursuant to this
section.
(b) Name the party making it and the party to whom it is being
made.
(c) State with particularity the amount offered to settle a claim
for punitive damages, if any.
(d) State its total amount.
The offer shall be construed as including all damages which may be
awarded in a final judgment.
....
(6) Upon motion made by the offeror within 30 days after the
entry of judgment or after voluntary dismissal or involuntary
dismissal, the court shall determine the following:
....
(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
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percent more than the amount of the offer, the plaintiff shall be
awarded reasonable costs, including investigative expenses, and
attorney’s fees, calculated in accordance with the guidelines
promulgated by the Supreme Court, incurred from the date the offer
was served.
. . . 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.
§ 768.79, Fla. Stat. (2011). The relevant portions of the current version of Rule
1.442 provide:
(c) Form and Content of Proposal for Settlement.
(1) A proposal shall be in writing and shall identify the
applicable Florida law under which it is being made.
(2) A proposal shall:
(A) name the party or parties making the proposal and the party
or parties to whom the proposal is being made;
(B) state that the proposal resolves all damages that would
otherwise be awarded in a final judgment in the action in which the
proposal is served, subject to subdivision (F);
(C) state with particularity any relevant conditions;
(D) state the total amount of the proposal and state with
particularity all nonmonetary terms of the proposal;
(E) state with particularity the amount proposed to settle a
claim for punitive damages, if any;
(F) state whether the proposal includes attorneys’ fees and
whether attorneys’ fees are part of the legal claim; and
(G) include a certificate of service in the form required by rule
1.080.
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(3) A proposal may be made by or to any party or parties and
by or to any combination of parties properly identified in the proposal.
A joint proposal shall state the amount and terms attributable to each
party.
(4) Notwithstanding subdivision (c)(3), when a party is alleged
to be solely vicariously, constructively, derivatively, or technically
liable, whether by operation of law or by contract, a joint proposal
made by or served on such a party need not state the apportionment or
contribution as to that party. Acceptance by any party shall be
without prejudice to the rights of contribution or indemnity.
Proposals under the offer of judgment statute must strictly conform to these
statutory and procedural requirements to entitle the offeror to attorneys’ fees
because the statute is in derogation of the common law that ordinarily requires
each party to pay its own attorneys’ fees. See, e.g., Pratt v. Weiss, 161 So. 3d
1268, 1271 (Fla. 2015) (citing Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849
So. 2d 276, 278 (Fla. 2003); Gershuny v. Martin McFall Messenger Anesthesia
Prof’l Ass’n, 539 So. 2d 1131, 1132 (Fla. 1989)). This Court reviews a party’s
entitlement to attorneys’ fees pursuant to section 768.79 and Rule 1.442 de novo.
E.g., id. (citing Frosti v. Creel, 979 So. 2d 912, 915 (Fla. 2008)).
Additionally, the proposal under the statute and rule must be sufficiently
clear and free of ambiguity to allow the offeree the opportunity to fully consider
the proposal. State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079
(Fla. 2006). However, this Court has not required the elimination of every
ambiguity—only reasonable ambiguities:
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We recognize that, given the nature of language, it may be impossible
to eliminate all ambiguity. The rule does not demand the impossible.
It merely requires that the settlement proposal be sufficiently clear and
definite to allow the offeree to make an informed decision without
needing clarification. If ambiguity within the proposal could
reasonably affect the offeree’s decision, the proposal will not satisfy
the particularity requirement [of Rule 1.442(c)(2)(C)-(D)].
Id. Ultimately, “[p]roposals for settlement are intended to end judicial labor, not
create more.” Id. (quoting Lucas v. Calhoun, 813 So. 2d 971, 973 (Fla. 2d DCA
2002)). Accordingly, courts are discouraged from “nitpicking” proposals for
settlement to search for ambiguity. Carey-All Transp., Inc. v. Newby, 989 So. 2d
1201, 1206 (Fla. 2d DCA 2008) (citing Nichols, 932 So. 2d at 1079).
The decision below is inconsistent with decisions of other district courts of
appeal that have addressed whether a settlement offer is ambiguous when it does
not address other parties to the action. The Second District recently rejected an
argument that a settlement proposal was ambiguous and therefore unenforceable
with respect to attorneys’ fees when the proposal was similar to the one at issue
here. Miley v. Nash, 171 So. 3d 145 (Fla. 2d DCA), rev. denied, Nash v. Miley,
192 So. 3d 40 (Fla. 2015). Miley involved an accident between Martha Nash and
Kyle Miley in a car owned by Kyle’s father, Glenn Miley. Id. at 147. Martha filed
a complaint against Kyle and Glenn seeking damages for her injuries, and Garfield
Nash, Martha’s husband, joined the action under a separate claim for loss of
consortium. Id. Prior to trial, Kyle offered a settlement proposal to Martha in “an
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attempt to resolve all claims and causes of action resulting from the incident or
accident giving rise to this lawsuit brought by Plaintiff Martha Nash against
Defendant Kyle Miley.” Id. The proposal contained a condition that Martha
dismiss her claims against both Kyle and Glenn, but did not address Garfield
Nash’s pending claim for loss of consortium, which was ultimately voluntarily
dismissed prior to trial. Id. After Martha obtained a favorable jury verdict that
was significantly less than the amount in Kyle’s offer, the trial court denied Kyle’s
motion for attorneys’ fees for several reasons, including the fact that the offer
failed to address Garfield Nash’s loss of consortium claim. Id.
On appeal, the Second District reversed and concluded that the proposal
complied with Rule 1.442. Id. Although the court acknowledged that the terms
“all claims” that “[gave] rise to the lawsuit” could have been more definite, it
concluded that these terms were not so ambiguous to prevent Martha Nash from
making an informed decision about her claim. Id. at 148. The court also held that
the proposal did not need to address Garfield Nash’s separate claim for loss of
consortium, which was a separate, identifiable, and derivative claim. Id. at 148-49
(“Because the proposal explicitly stated that it was to cover all claims brought by
Martha Nash, it was not deficient for failing to address the other pending claim in
the lawsuit brought by an entirely different plaintiff.”).
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The Fourth District has also rejected similar attempts to inject ambiguity into
otherwise sufficient proposals. See Alamo Fin., L.P. v. Mazoff, 112 So. 3d 626
(Fla. 4th DCA 2013); Land & Sea Petroleum, Inc. v. Bus. Specialists, Inc., 53 So.
3d 348 (Fla. 4th DCA 2011). Alamo Financing involved a motor vehicle accident
between the plaintiff, Matthew Mazoff, and a defendant, Paola Alvarado-
Fernandez. 112 So. 3d at 627. Alamo Financing owned the vehicle driven by
Alvarado-Fernandez, while a separate entity, Alamo Rental (US), Inc., leased the
vehicle to Alvarado-Fernandez. Id. Mazoff sought damages from Alamo
Financing and Alvarado-Fernandez, specifically alleging that Alamo Financing
was vicariously liable for Alvarado-Fernandez’s negligence. Id. Alamo Financing
proposed an offer of settlement to Mazoff that contained a condition that Mazoff
would release Alamo Financing and “their parent corporations, subsidiaries,
officers, directors, and employees” from any and all claims. Id. Mazoff
subsequently moved to add Alamo Rental as a defendant after learning that Alamo
Rental was the entity that leased the car. Id. at 628.
After obtaining a judgment in its favor, Alamo Financing unsuccessfully
moved for attorneys’ fees before the trial court. Id. On appeal, the Fourth District
agreed with Alamo Financing that the proposal was unambiguous and therefore
enforceable. Id. at 629. The court rejected Mazoff’s argument that the language
“all [c]laims made in the present action by the party to whom this proposal is made
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including any claims that could be made against Defendant ALAMO
FINANCING, L.P., which arise out of the same occurrence or event set forth in
this action,” could extinguish Mazoff’s claims against Alvarado-Fernandez. Id. at
629-30. Specifically, the court acknowledged that when read in isolation, this
clause could suggest that Mazoff’s separate claims against Alvarado-Fernandez
may be affected by acceptance of Alamo Financing’s offer; nonetheless, the
context of the entire offer indicated that Alamo Financing was the only offeror and
the only party to be dismissed from suit upon Mazoff’s acceptance. Id. at 630.
The Fourth District similarly dispensed with Mazoff’s suggestion that the proposal
was ambiguous because it could have constituted a release of Alamo Rental, which
was not a party to the lawsuit at the time the offer was made. Id. at 630-31.
In Land & Sea Petroleum, an offeror-seller made two separate proposals for
settlement to the two different brokers with whom it was engaged in a contract
dispute. 53 So. 3d at 351-52. Other than the name of each broker-offeree, the
proposals were identical and indicated that they attempted to resolve “all claims as
well as any and all claims that could have been or should have been brought by”
the designated broker-offeree against the offeror-seller. Id. at 352. The Fourth
District determined that this offer was sufficiently clear to support an award of
attorneys’ fees. Id. at 353 (“The brokers’ reliance on the fact that the seller did not
expressly state that it would be the party paying the [amount offered] seems to be
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the type of ‘nit-picking’ which the [Second District] cautioned against in Carey-
All.”).
Thus, the decision of the Fifth District below expressly and directly conflicts
with these decisions of the Second and Fourth Districts. In Miley, Alamo
Financing, and Land & Sea Petroleum, an offer by a single named offeror to a
single offeree was considered sufficiently clear and enforceable, although it did not
address separate pending claims of other parties to the litigation. However, the
Fifth District below determined that such an offer was ambiguous and
unenforceable because it could have affected the unaddressed claims of Paula
Anderson. Therefore, we properly have jurisdiction of this matter and quash the
decision below.
The reading of Anderson’s offer as espoused by the Respondents, the trial
court, and the Fifth District below is unreasonable and in contravention of this
Court’s direction in Nichols. The proposal clearly and consistently used the
singular term “PLAINTIFF,” which was defined as Troy Anderson in Paragraph 2.
Moreover, Paragraph 3 indicated that each proposal was designed to settle “any
and all claims of PLAINTIFF [Troy Anderson] against [RESPONDENT],” which
by its clear terms defined that the only parties to be affected by acceptance of the
proposal would be Troy Anderson and the designated Respondent. Finally, the
offer made by Troy Anderson had no reference to Paula Anderson or her loss of
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consortium claim, which Anderson was not obliged to address in his claim. See
Miley, 171 So. 3d at 148-49. On this point, we note that Paula Anderson made her
own separate, nearly simultaneous offers to each of the Respondents. If a party
receives two simultaneous offers from two separate parties, common sense dictates
that the offeree should possess all the information necessary to determine whether
to settle with one or both of the offerors. See Nichols, 932 So. 2d at 1079 (“[T]he
settlement proposal [must] be sufficiently clear and definite to allow the offeree to
make an informed decision without needing clarification.”). In reading the entirety
of Anderson’s proposals, the only reasonable interpretation is that Troy Anderson
offered to settle only his claims with each Respondent in his offer.
We reject the suggestion by the Respondents that Troy Anderson’s offer was
actually a joint offer intended to settle the claims of both Troy and Paula Anderson,
as occurred in Audiffred v. Arnold, 161 So. 3d 1274 (Fla. 2015). Not only would
such a reading be contrary to the plain language of Troy Anderson’s proposal, but
the proposal in Audiffred was factually distinguishable from the offer in this case.
Although the proposal in Audiffred indicated that only one party (Valerie
Audiffred) made the offer, the proposal also indicated that it was attempting to
resolve “[a]ny and all claims Plaintiffs have brought against the Defendant,” and it
expressly indicated that both Audiffred and her husband, the other plaintiff in the
matter, would dismiss their respective claims against the defendant upon his
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acceptance of the offer. Id. at 1276 (emphasis supplied). We explained that this
proposal was a joint offer that was ultimately unenforceable because it lacked
apportionment among the plaintiffs. Id. at 1279-80. By contrast, Troy Anderson’s
proposals were not joint proposals and made no reference to Paula’s claim for loss
of consortium. Apportionment simply was not an issue below.
Relatedly, the Respondents assert that Troy Anderson’s counsel admitted
during an evidentiary hearing on Anderson’s entitlement to attorneys’ fees that the
purpose of the offer was to settle the claims of both Troy and Paula.
Unfortunately, the record before this Court does not contain the transcript of this
evidentiary hearing. Nonetheless, any such statement would ultimately be
irrelevant to the issue at hand: whether the proposals submitted by Troy Anderson
were sufficient to allow each Respondent to “make an informed decision” about
settling Troy Anderson’s claim “without needing clarification.” Nichols, 932 So.
2d at 1079. The underlying motives of a party that proposes settlement are
unrelated to the strict requirements of the offer of judgment statute and rule, or
their purpose, which is to promote prompt and good-faith efforts to settle claims.
See, e.g., id. (“Proposals for settlement are intended to end judicial labor, not
create more.”) (citing Lucas, 813 So. 2d at 973); see also § 768.79(7), Fla. Stat.
(granting judicial discretion to determine if an offer was not made in good faith
and disallow an otherwise mandatory award of fees). Therefore, we conclude that
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Troy Anderson’s proposals were sufficiently clear for the purpose of determining
his entitlement to attorneys’ fees.
Whether Anderson’s Individual Offers May Be Compared to the
Unapportioned Final Judgment
The Respondents also insist that Troy Anderson’s proposals cannot be
enforced because he served individual offers to each Respondent, but only
obtained judgments against “Embassy Suites” and SecurAmerica; thus, the
collective judgment against “Embassy Suites” cannot be compared to individual
offers made to Hilton, W2007, and Interstate when vicarious liability was not pled
or found below. Alternatively, the defendant-respondents argue that Troy
Anderson offered to settle with the collective “Embassy Suites” Respondents for
$1.4 million (based on offers to Hilton for $650,000, W2007 for $100,000, and
Interstate for $650,000), but obtained a judgment against “Embassy Suites” for
$1.25 million, which the Respondents assert does not satisfy the 25% threshold of
section 768.69(1). In affirming the trial court’s denial of Anderson’s motion for
attorneys’ fees, the Fifth District stated that Anderson’s offer was unenforceable to
recover attorneys’ fees because “the purpose behind the enactment of section
768.79 (i.e., to sanction a party for rejecting a presumptively reasonable proposal
for settlement) would be ill-served. . . .” Hilton Hotels, 153 So. 3d at 416-17.
Notwithstanding this vague and unsupported statement, we disagree.
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This Court has explained that the offer of judgment statute creates an
entitlement to attorneys’ fees when the statutory and procedural requirements have
been satisfied. Attorneys’ Title Ins. Fund, Inc. v. Gorka, 36 So. 3d 646, 649 (Fla.
2010). The mandatory language of section 768.79 reinforces the notion that a
proper offer automatically creates that entitlement, unless the offer is made in bad
faith. See § 768.79(1), Fla. Stat. (“[I]f a defendant files an offer of judgment
which is not accepted by the plaintiff within 30 days, the defendant shall be
entitled to recover reasonable costs and attorney’s fees . . . . If a plaintiff files a
demand for judgment which is not accepted by the defendant within 30 days . . .
she or he shall be entitled to recover reasonable costs and attorney’s fees . . . .”)
(emphasis supplied); § 768.79(7)(a) (granting courts discretion to withhold fees to
which a party is otherwise entitled if the court determines the offer was not made
in good faith). Thus, an offer that complies with section 768.79 and Rule 1.442
creates a “mandatory right” to collect attorneys’ fees. TGI Friday’s, Inc. v.
Dvorak, 663 So. 2d 606, 611 (Fla. 1995) (citing Schmidt v. Fortner, 629 So. 2d
1036 (Fla. 4th DCA 1993)).
Further, it is clear that this entitlement to attorneys’ fees hinges on the
“judgment obtained,” as opposed to a verdict form returned by the jury. §
768.79(6), Fla. Stat. (defining “judgment obtained” by a plaintiff as “the amount of
the net judgment entered, plus any postoffer settlement amounts by which the
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verdict was reduced”); Frosti, 979 So. 2d at 916; White v. Steak & Ale of Fla.,
Inc., 816 So. 2d 546, 549-50 (Fla. 2002) (citing Perez v. Circuit City Stores, Inc.,
721 So. 2d 409, 412 (Fla. 3d DCA 1998)). However, neither section 768.79 nor
Rule 1.442 specifies that a plaintiff must obtain a judgment from a designated
party to be entitled to attorneys’ fees. This entitlement is only dependent upon a
sufficient offer and judgment obtained, not a judgment “obtained from designated
offerees.” Thus, the district court’s concern with Anderson’s failure to request an
assignment of fault among Hilton, W2007, and Interstate was misplaced.
Additionally, the Second District has held that it is improper to combine
separate offers and compare them to the judgment obtained when evaluating a
party’s entitlement to fees. Hess v. Walton, 898 So. 2d 1046 (Fla. 2d DCA 2005);
Thornburg v. Pursell, 476 So. 2d 323, 325 (Fla. 2d DCA 1985). In Hess, Noreen
Walton filed an action against her doctor, Dr. Alfred Hess, for negligence, and
against his employer, Florida Orthopaedic Institute (FOI), for vicarious liability.
898 So. 2d at 1047. Both Hess and FOI were represented by the same law firm.
Id. at 1047 n.1. Walton proposed to settle with Hess for $100,000 and with FOI
for $15,000. After the jury returned a verdict in favor of Walton for $23,500, the
trial court awarded Walton attorneys’ fees against FOI because the judgment
entered was at least 25% greater than Walton’s offer to FOI for $15,000. Id.
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The Second District subsequently rejected FOI’s appeal regarding the award
of attorneys’ fees. Id. at 1048. The court first explained that section 768.79 and
Rule 1.442 were neither ambiguous nor vague; thus, under a strict construction of
the statute and rule, the award against FOI was mandated. Id. at 1049-50. Further,
the court acknowledged that absent allegations or evidence of bad faith on the part
of the offeror, there may be valid, strategic reasons for an offeror to submit such
differentiated offers to separate parties:
It is worth explaining that the plaintiff may have a logical,
strategic reason to make such differentiated offers. It forces one
defendant to settle. The plaintiff obtains money that can be used to
further prosecute the lawsuit or which can be safeguarded from the
risk of a future judgment if the defendants obtain the right to a
judgment for their fees. The plaintiff can eliminate the defendant for
whom the jury may have sympathy, or the defendant who may be on
the brink of bankruptcy. If more than one lawyer is involved, the
plaintiff can remove the defendant with the best lawyer. We doubt
that these are considerations addressed by the legislature when
enacting these fee-shifting provisions, but they are logical
considerations and we cannot rule that they are matters that a
plaintiff’s attorney should disregard when making a good faith offer to
settle a case. . . .
Id. at 1051 (footnote omitted).
Additionally, in Thornburg, several defendants made separate offers to
plaintiffs in the amounts of $500 and $1,500. 476 So. 2d at 324-25. Judgment was
ultimately entered in favor of the plaintiffs for $2,000, but the trial court denied the
plaintiffs’ motion to recover costs after considering the collective offers of
settlement by the various defendants. Id. at 324. The Second District reversed that
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order after concluding that it was improper to combine the offer of $500 with the
offer of $1,500 and compare those against the final judgment of $2,000, noting that
Rule 1.442 did not discuss the possibility of aggregating offers. Id. at 324-25.
We agree with the persuasive reasoning of the Second District. The trial
court’s denial of Troy Anderson’s motion for attorneys’ fees and the Fifth
District’s decision affirming that denial ignores both the facts of this case and the
clear requirements of the offer of judgment statute and rule. At the very least,
Anderson’s offer to SecurAmerica alone created a right to attorneys’ fees upon
entry of judgment against SecurAmerica: Anderson proposed to settle his claims
against SecurAmerica for $300,000 and obtained a judgment against SecurAmerica
for $476,578.48, which is approximately 159% of Anderson’s offer—well above
the 25% threshold in section 768.79(6)(b).
Moreover, Troy Anderson is also entitled to attorneys’ fees based on his
separate offers to Hilton, W2007, and Interstate. Anderson offered to settle with
Hilton for $650,000, with W2007 for $100,000, and with Interstate for $650,000.
The trial court entered a judgment against these Respondents in the amount of
$1,225,487.52, which is approximately 189% of the offers Anderson made to
Hilton and Interstate, and approximately 1225% of the offer made to W2007. The
only way that these offers could not satisfy the statutory requirement would be if
the offers were to be aggregated, which cannot be tolerated under a strict
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construction of section 768.79. See id.; see also Pratt, 161 So. 3d at 1271
(explaining that the offer of judgment statute must be strictly construed). Thus,
Troy Anderson’s offers to Hilton, W2007, and Interstate complied with the
requirements of section 768.79 and Rule 1.442; upon obtaining a judgment that
was at least 25% greater than any one of these offers, Troy Anderson became
entitled to attorneys’ fees. The fact that the judgment entered by the trial court did
not specify that Hilton, W2007, and Interstate were jointly and severally liable to
Anderson for this judgment did not otherwise destroy this entitlement.
We reject the argument of the Respondents that Troy Anderson waived this
right by agreeing with the defendants’ proposal to refer to Hilton, W2007, and
Interstate collectively as “Embassy Suites” during trial. As explained above,
nothing in the offer of judgment statute or rule requires a plaintiff to obtain a
judgment against a specific defendant where there are multiple parties to the
action; the plaintiff must simply obtain a judgment that is at least 25% greater than
the offer. § 768.79(6)(b), Fla. Stat. The fact that all parties agreed to refer to
Hilton, W2007, and Interstate as “Embassy Suites” collectively for the purposes of
minimizing juror confusion does not affect Troy Anderson’s entitlement to
attorneys’ fees in this case when that entitlement is contingent only upon a
satisfactory offer of settlement and judgment that is at least 25% greater than that
offer.
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CONCLUSION
Reading the plain language of Troy Anderson’s offers, we hold that these
offers to settle his claims against the Respondents were unambiguous. The
“nitpicking” of these offers by the courts below to find otherwise unnecessarily
injected ambiguity into these proceedings and created more judicial labor, not less.
Cf. Nichols, 932 So. 2d at 1079. Furthermore, the plain language of both section
768.79 and Florida Rule of Civil Procedure 1.442 indicates that Troy Anderson’s
entitlement to attorneys’ fees was actualized after he submitted sufficient offers
and obtained satisfactory judgments in his favor. The fact that the parties chose to
collectively refer to some of the Respondents for the sake of convenience before
the jury does not alter that entitlement. Therefore, we quash the decision below
and remand for further proceedings consistent with this opinion.
It is so ordered.
LABARGA, C.J., and PARIENTE, QUINCE, and PERRY, JJ., concur.
CANADY and POLSTON, JJ., concur in result.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions
Fifth District - Case Nos. 5D13-2552 & 5D13-2553
(Orange County)
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Barbara A. Eagan of Eagan Appellate Law, PLLC, Orlando, Florida; Thomas D.
Hall and John S. Mills of The Mills Firm, P.A., Tallahassee, Florida; W. Riley
Allen of Riley Allen Law, Orlando, Florida; Simon L. Wiseman of The Wiseman
Law Firm, P.A., Orlando, Florida; and Margaret E. Kozan of Margaret E. Kozan,
P.A., Winter Park, Florida,
for Petitioner
Pamela A. Chamberlin of Mitrani, Rynor, Adamsky & Toland, P.A., Miami Beach;
and Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Orlando,
Florida,
for Respondent
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