Valerie Audiffred v. Thomas B. Arnold , 40 Fla. L. Weekly Supp. 199 ( 2015 )

Supreme Court of Florida
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No. SC12-2377
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VALERIE AUDIFFRED,
Petitioner,
vs.
THOMAS B. ARNOLD,
Respondent.
[April 16, 2015]
LEWIS, J.
Petitioner Valerie Audiffred seeks review of the decision of the First District
Court of Appeal in Arnold v. Audiffred, 98 So. 3d 746 (Fla. 1st DCA 2012), on the
basis that it expressly and directly conflicts with decisions of the Third, Fourth, and
Fifth District Courts of Appeal on a question of law. We have jurisdiction. See
art. V, § 3(b)(3), Fla. Const.
FACTS
Valerie Audiffred and her husband, Robert Kimmons, filed an action against
Thomas Arnold that arose from an automobile collision. Arnold, 98 So. 3d at 747.
In the complaint, Audiffred sought damages for her injuries and for vehicle repairs.
Id. Kimmons sought damages based upon loss of consortium. Id. On April 29,
2010, a settlement proposal was served upon Arnold which provided:
PROPOSAL FOR SETTLEMENT
Plaintiff, Valerie Audiffred, by and through the undersigned
counsel hereby make the following proposal for settlement pursuant to
F.S. § 768.79 and Rule 1.442 F.R.C.P., to wit:
1. NAME OF PARTY OR PARTIES MAKING THIS
PROPOSAL:
Plaintiff: Valerie Audiffred
2. PARTY OR PARTIES TO WHOM THE
PROPOSAL IS BEING MADE:
Defendant: Thomas B. Arnold
3. IDENTIFY THE CLAIM OR CLAIMS THE
PROPOSAL IS ATTEMPTING TO RESOLVE:
Any and all claims Plaintiffs have brought against the
Defendant set forth in the Complaint in the above captioned case and
any other claim or claims that may have risen as a result of the subject
incident set forth in Plaintiffs’ Complaint, including attorney’s fees
and costs.
4. ANY RELEVANT CONDITIONS:
Both Plaintiffs will dismiss this lawsuit, with prejudice, as to
the Defendant.
5. TOTAL AMOUNT OF PROPOSAL:
Seventeen Thousand Five Hundred Dollars and no cents
($17,500.00).
Arnold constructively rejected the proposal when he did not respond within thirty
days. Id.; see also Fla. R. Civ. P. 1.442(f)(1) (“A proposal shall be deemed
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rejected unless accepted by delivery of a written notice of acceptance within 30
days after service of the proposal.”).
After a jury trial, a verdict was entered against Arnold in the amount of
$26,055.54 for Audiffred’s past medical expenses. Arnold, 98 So. 3d at 747.
However, the jury did not award anything to Audiffred for permanent damages or
to Kimmons for the loss of consortium claim. Id. at 747-48. Audiffred and
Kimmons then filed a motion that sought an award of costs and attorney’s fees
pursuant to section 768.79, Florida Statutes (2014),1 the offer of judgment statute,
and Florida Rule of Civil Procedure 1.442. Id. at 748. Arnold moved to strike the
settlement proposal on the basis that it was defective because it was filed only on
behalf of Audiffred, but offered to settle the claims of both Audiffred and
Kimmons. Arnold asserted that unapportioned settlement proposals that resolve
the claims of multiple parties are improper, even where one claim is a loss of
consortium claim filed by a spouse.
After a hearing, the trial court denied the motion to strike and entered an
amended final judgment that awarded Audiffred and Kimmons costs and attorney’s
fees. The trial court explained:
the offer in this case was clear and unambiguous in that it identified
the parties and clearly identified the monetary and non-monetary
1. Section 768.79 has not been amended since the incident in this case.
Therefore, we reference the current version of the statute.
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conditions, that both plaintiffs would dismiss their lawsuit with
prejudice. Regardless of whether or not Valerie Audiffred had the
authority to bind Robert Kimmons to a voluntary dismissal in the
event that the defendant had accepted the proposal for settlement, the
defendant clearly had the ability to evaluate the proposal and accept it
on its terms. . . . Under the circumstances of this case[,] where
Kimmons was represented by the same attorney that represented
Audiffred, the Court finds that the proposal for settlement, including a
provision that both plaintiffs would dismiss their lawsuit against the
defendant, was unambiguous and legally sufficient.
On appeal, the First District reversed the award of costs and attorney’s fees.
Arnold, 98 So. 3d at 747. The district court concluded that the settlement offer
constituted a joint proposal because, when read as a whole, it clearly expressed that
Audiffred and Kimmons would dismiss their claims against Arnold with prejudice
upon acceptance. Id. at 748. The district court also noted:
The Florida Supreme Court stated in Willis Shaw Express, Inc.
v. Hilyer Sod, Inc. that “[a] strict construction of the plain language of
rule 1.442(c)(3) requires that offers of judgment made by multiple
offerors must apportion the amounts attributable to each offeror.” 849
So. 2d 276, 278-79 (Fla. 2003). When multiple offerors make a
proposal for settlement to a single offeree, that individual is entitled to
know the amount and terms attributable to each offeror in order to
properly evaluate the offer. Allstate Ins. Co. v. Materiale, 787 So. 2d
173, 175 (Fla. 2d DCA 2001).
Id. Relying on Hilyer Sod, the First District held that the proposal was invalid for
failure to comply with section 768.79 and rule 1.442 because it did not apportion
the settlement amount between Audiffred and Kimmons. Id. at 747-48.
We granted review of Arnold based upon express and direct conflict with
decisions that hold a proposal for settlement made by a single offeror to a single
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offeree which upon acceptance will dismiss the entire action, including claims for
or against a party who is neither an offeror nor offeree, is not an undifferentiated
“joint proposal” that renders the offer invalid and unenforceable. See, e.g.,
Andrews v. Frey, 66 So. 3d 376 (Fla. 5th DCA 2011); Eastern Atl. Realty & Inv.
Inc. v. GSOMR LLC, 14 So. 3d 1215 (Fla. 3d DCA 2009); Alioto-Alexander v.
Toll Bros., Inc., 12 So. 3d 915 (Fla. 4th DCA 2009).
ANALYSIS
Relevant Provisions
Section 768.79, Florida Statutes, governs offers of judgment, and rule 1.442
delineates the procedures that implement this statutory provision. See Hilyer Sod,
849 So. 2d at 278. Section 768.79 provides, in relevant part:
(1) In any civil action for damages filed in the courts of this
state, if 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 incurred by her or him or
on the defendant’s behalf pursuant to a policy of liability insurance or
other contract from the date of filing of the offer if the judgment is
one of no liability or the judgment obtained by the plaintiff is at least
25 percent less than such offer, and the court shall set off such costs
and attorney’s fees against the award. . . . If 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:
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(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.
Rule 1.442 provides, in relevant part:
(c) Form and Content of Proposal for Settlement.
....
(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;
....
(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;
....
(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.
Fla. R. Civ. P. 1.442 (emphasis supplied).2
2. In 2011, the rule was amended to add subdivision (c)(4). The new
subdivision, which is not applicable to this case, states:
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
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In the recent case Pratt v. Weiss, No. SC12-1783 (Fla. Apr. 16, 2015), we
articulated the standards under which motions for costs and attorney’s fees sought
pursuant to section 768.79 and rule 1.442 are evaluated:
The eligibility to receive attorney’s fees and costs pursuant to
section 768.79 and rule 1.442 is reviewed de novo. See Frosti v.
Creel, 979 So. 2d 912, 915 (Fla. 2008). This Court has held that
subdivision (c)(3) of rule 1.442, which requires a joint proposal to
state the amount and terms attributable to each offeror or offeree, must
be strictly construed because it, as well as the offer of judgment
statute, is in derogation of the common law rule that each party is
responsible for its own fees. See Hilyer Sod, 849 So. 2d at 278; see
also Gershuny v. Martin McFall Messenger Anesthesia Prof. Ass’n,
539 So. 2d 1131, 1132 (Fla. 1989) (“[T]he rule in Florida requires that
statutes awarding attorney’s fees must be strictly construed.”). [n.4]
Thus, to be valid, an offer of judgment presented by multiple offerors
must apportion the amount that is attributable to each offeror. Hilyer
Sod, 849 So. 2d at 278-79.
[N.4.] This Court has also strictly applied other
provisions of the offer of judgment statute and rule. See
Campbell v. Goldman, 959 So. 2d 223, 226-27 (Fla.
2007) (holding that settlement proposal was invalid for
failing to cite section 768.79 as mandated by both the
statute and the rule).
The purpose of the apportionment requirement in the rule is to
allow each offeree to evaluate the terms and the amount of the offer as
it pertains to him or her. See id. at 278 (quoting Allstate Ins. Co. v.
Materiale, 787 So. 2d 173, 175 (Fla. 2d DCA 2001)). On more than
one occasion, the Fourth District has referred to the requirement as a
“bright line rule,” to be applied without exception. See Cano v.
contribution as to that party. Acceptance by any party shall be
without prejudice to rights of contribution or indemnity.
In re Amends. to Fla. Rules of Civ. Pro., 52 So. 3d 579, 588 (Fla. 2010).
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Hyundai Motor America, Inc., 8 So. 3d 408, 411 (Fla. 4th DCA
2009); Graham v. Yeskel, 928 So. 2d 371, 373 (Fla. 4th DCA 2006).
Strict application of the requirement has resulted in the invalidation of
offers of judgment where two plaintiffs presented an unapportioned
settlement offer to one defendant, see Hilyer Sod, 849 So. 2d at 277;
where one plaintiff presented an unapportioned settlement offer to two
defendants, even though one defendant was alleged to be only
vicariously liable, see Lamb[ v. Matetzschk, 906 So. 2d 1037, 1040
(Fla. 2005)]; [n.5] and where one defendant presented an offer to two
plaintiffs that was conditioned upon the acceptance of both plaintiffs,
see Attorneys’ Title Insurance Fund, Inc. v. Gorka, 36 So. 3d 646,
647-48 (Fla. 2010). We held that the proposal in Gorka was invalid
because the conditional nature of the offer divested each plaintiff of
independent control over the decision to settle. Id. at 649.
[N.5.] Lamb was decided prior to the 2011 amendment
to rule 1.442.
Id. at 6-8. Further, in Materiale, the Second District Court of Appeal noted that
apportionment of the settlement amount can be particularly important where a loss
of consortium claim is involved because a defendant may elect to settle the
consortium claim for a minimal amount, but proceed to trial on the primary claim.
787 So. 2d at 175; see also id. at 176 (Casanueva, J., concurring) (“[W]here a
consortium claim is joined with a claim for personal injuries, the former claim may
be more amenable to settlement than the latter because it may involve less
money.”).
Also relevant to our analysis today is subdivision (c)(2)(C) of rule 1.442,
which requires that a proposal state “with particularity” any relevant conditions.
While the rule does not require an offer to be completely free of ambiguity, we
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have explained that the proposal must be sufficiently clear to permit the offeree to
reach an informed decision without the need of clarification. State Farm Mut.
Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006). If ambiguity within
a proposal could reasonably affect the decision of an offeree, the proposal will not
satisfy the particularity requirement. Id.
This Case
Based upon these standards, we hold that the proposal for settlement did not
comply with section 768.79 and rule 1.442. The complaint in this case involved
separate claims by Audiffred and Kimmons. Although the proposal lists Audiffred
as the sole offeror, if accepted by Arnold, the offer would have resolved all
pending claims by both Audiffred and Kimmons. Thus, the proposal had the effect
of settling claims by two plaintiffs against one defendant. Under the required strict
construction of the rule and the statute, this ultimate effect of the offer requires that
it be treated as a joint proposal.3 Accordingly, for the proposal to be valid, it was
3. Not only did the offer have the effect of a joint proposal, but the
subsequent motion for costs and attorney’s fees filed after rendition of the verdict
supports a conclusion that the offer was a joint proposal because it expressly
provided:
Plaintiffs, VALERIE AUDIFFRED and ROBERT KIMMONS,
by and through undersigned counsel, and pursuant to Florida Statute §
768.79, as well as Florida Rules of Civil Procedure, 1.442 and 1.525,
hereby respectfully requests this Court to enter judgment against the
Defendant in the amount of Plaintiff’s attorneys’ fees . . . which have
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necessary for the amount offered to be apportioned between Audiffred and
Kimmons.
The proposal, however, does not describe what portion of the amount
offered would be applicable to Audiffred, and what portion would be applicable to
Kimmons. As written, the proposal does not clearly convey whether the settlement
amount would be divided evenly between Audiffred and Kimmons, whether one
plaintiff would take nothing while the other would receive the full amount offered,
or whether some measure between the two was intended. Although Audiffred
asserts that the intent of the proposal was for Kimmons not to receive any portion
of the settlement amount for his loss of consortium claim, the actual language of
the proposal is not at all clear on this matter. Instead, the proposal states only that
upon payment of $17,500, Audiffred and Kimmons would “dismiss this lawsuit,
with prejudice, as to the Defendant.”
We conclude that due to this patent ambiguity, the offer lacked sufficient
clarity to permit Arnold to reach an informed decision with regard to the settlement
amount against the pending claims by Audiffred and Kimmons. See generally
Nichols, 932 So. 2d at 1079. Accordingly, the settlement proposal was fatally
accrued since the date Plaintiffs served their Proposal for Settlement
on Defendant.
(Emphasis supplied.) Thus, the motion recognized that the proposal, had it been
accepted, would have settled the claims of two plaintiffs.
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ambiguous and, therefore, invalid because it failed to state with particularity this
critical condition of the offer. Fla. R. Civ. P. 1.442(c)(2)(C). Accordingly, the
First District properly reversed the award of costs and attorney’s fees to Audiffred
and Kimmons.
CONCLUSION
Based on the foregoing, we approve the decision in Arnold. We hold that
when a single offeror submits a settlement proposal to a single offeree pursuant to
section 768.79 and rule 1.442, and the offer resolves pending claims by or against
additional parties who are neither offerors nor offerees, it constitutes a joint
proposal that is subject to the apportionment requirement in subdivision (c)(3) of
the rule. We conclude that the statute and the rule mandate apportionment under
such circumstances to eliminate any ambiguity with regard to the resolution of
claims by nonofferor/nonofferee parties. The decisions in Frey, GSOMR, and
Alioto-Alexander are disapproved to the extent they are inconsistent with this
opinion.
It is so ordered.
LABARGA, C.J., and PARIENTE, QUINCE and PERRY, JJ., concur.
CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
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CANADY, J., dissenting.
Because there is no express and direct conflict of decisions underpinning the
Court’s review, I would dismiss this case for lack of jurisdiction under article V,
section 3(b)(3) of the Florida Constitution.
Although the proposal for settlement in the case before us stated at the outset
that it was submitted only by Audiffred, the First District concluded that it actually
constituted a joint proposal. Arnold v. Audiffred, 98 So. 3d 746, 748 (Fla. 1st
DCA 2012). The district court reasoned that the proposal was jointly made
because, when read as a whole, it clearly expressed a promise that both plaintiffs
Audiffred and Kimmons would dismiss their individual claims against Arnold
upon acceptance. Id. Because the joint proposal did not apportion the amount
offered between Audiffred and Kimmons, the district court held that the proposal
was invalid. Id. at 747.
The majority granted review of this case based upon express and direct
conflict with the decisions of the other district courts in Andrews v. Frey, 66 So. 3d
376 (Fla. 5th DCA 2011), Eastern Atlantic Realty & Investment Inc. v. GSOMR
LLC, 14 So. 3d 1215 (Fla. 3d DCA 2009), and Alioto-Alexander v. Toll Brothers,
Inc., 12 So. 3d 915 (Fla. 4th DCA 2009). Majority op. at 4-5. However, the
district courts concluded that the proposals in each of those cases were made by a
sole offeror, and therefore they were not required to state the amount and terms
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attributable to each party. Frey, 66 So. 3d at 379; Eastern, 14 So. 3d at 1222;
Alioto-Alexander, 12 So. 3d at 916-17.
In Frey and Alioto-Alexander, the proposals at issue were made by a single
defendant and were conditioned on the plaintiff releasing from liability both the
offeror defendant and a second nonofferor defendant. Frey, 66 So. 3d at 378;
Alioto-Alexander, 12 So. 3d at 916. The district courts in both cases found that the
proposals were not jointly made and that a proposal from one party conditioned on
the offeree also releasing another party from liability does not transform an offer
into a joint proposal. Frey, 66 So. 3d at 378; Alioto-Alexander, 12 So. 3d at 917.
However, the First District distinguished the proposals in Frey and Alioto-
Alexander from the instant case because the proposals in those cases “did not
promise that another individual would take affirmative action upon acceptance of
the proposal,” but here Audiffred’s proposal promised that another individual,
Kimmons, would take affirmative action—i.e., dismiss his claims against Arnold—
upon acceptance of the offer. Arnold, 98 So. 3d at 749.
In Eastern, both Biscayne Joint Venture, Ltd. (“BJV”) and GSOMR, LLC
(“GSOMR”) filed claims against Eastern Atlantic Realty and Investment, Inc.
(“Eastern”). 14 So. 3d at 1218. Eastern then counterclaimed against BJV, and the
cases were consolidated. Id. BJV served a proposal for settlement offering
$20,000 and dismissal of both BJV’s and GSOMR’s claims against Eastern, in
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exchange for Eastern’s dismissal of its claims against BJV. Id. The Third District
held that the proposal was not a joint proposal that failed to apportion the amount
offered between BJV and GSOMR because it “explicitly state[d] that BJV was the
party making the offer to pay Eastern $20,000.” Id. at 1221.
The cases on which the majority relies to establish this Court’s jurisdiction
based on express and direct conflict are factually distinguishable from Arnold.
While the proposal in Arnold was determined to be a joint proposal that failed to
apportion the settlement amount between the two offerors, the proposals in Frey,
Eastern, and Alioto-Alexander were found to be made by a single offeror.
Consequently, the First District did not reach an opposite holding based on the
same or closely similar controlling facts to those in Frey, Eastern, or Alioto-
Alexander. Therefore, I conclude that this Court is without jurisdiction to review
Arnold based on express and direct conflict. Accordingly, I dissent.
POLSTON, J., concurs.
Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions
First District - Case No. 1D11-6583
(Escambia County)
Marcus Joseph Michles, II of Michles & Booth, P.A, Pensacola, Florida, and Louis
Kahn Rosenbloum of Louis K. Rosenbloum, P.A, Pensacola, Florida,
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for Petitioner
Jeffrey Errol Bigman of Smith, Hood, Loucks, Stout, Bigman, & Brock, P.A.,
Daytona Beach, Florida, and Michelle Lynn Hendrix of Vernis & Bowling,
Pensacola, Florida,
for Respondent
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