THE ANDERSEN FIRM, PC v. SCOTT A. BROWN

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
THE ANDERSEN FIRM, P.C.,
Appellant,
v.
SCOTT A. BROWN,
Appellee.
No. 4D20-2067
[November 10, 2021]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Keathan Frink, Judge; L.T. Case No.
062014CA006423AXXXCE.
Donald H. Benson of Bradham, Benson, Lindley, Blevins, Bayliss &
Wyatt of Florida East Coast, P.L.L.C., Fort Lauderdale, for appellant.
Scott A. Brown, Fort Lauderdale, pro se.
LEVINE, J.
The Andersen Firm, P.C. (“Andersen”) appeals a final order denying its
motion for entitlement to attorney’s fees and costs. We affirm the trial
court’s finding that Andersen’s proposal for settlement was ambiguous
and did not support an attorney’s fees award under the offer of judgment
statute. However, we find the trial court erred by denying Andersen’s
motion for costs. Therefore, we reverse and remand for an evidentiary
hearing on entitlement to costs.
Scott Brown (“Brown”) was in a work-related automobile accident while
employed with Andersen. He filed a workers’ compensation claim and
began receiving benefits from Andersen’s workers’ compensation insurer,
The Travelers Indemnity Co. (“Travelers”). While still receiving workers’
compensation benefits, Brown was terminated from his employment with
Andersen. Shortly thereafter, Brown stopped receiving his workers’
compensation benefits from Travelers. Believing that he was terminated
because of his outstanding workers’ compensation claim, Brown filed a
complaint against Andersen for wrongful termination. During the
pendency of the wrongful termination litigation, Brown filed a workers’
compensation petition for benefits against Travelers.
Andersen served Brown with a proposal for settlement under section
768.79, Florida Statutes (2020), and Florida Rule of Civil Procedure 1.442
for the pending wrongful termination suit. The proposal required Brown
to execute an attached release “in favor of the Defendant and Defendant’s
insurer.” The release failed to identify the names of both the firm and the
insurer to be released, leaving blank spots where the names were meant
to be. The release required Brown to release all claims “arising out of the
allegations and issues of the Plaintiff’s discharge from The Andersen Firm,
which is the subject matter of the litigation known as Brown v. The
Andersen Firm, filed in the 17th Judicial Circuit in and for Broward
County, under Case No. CACE 14-006423 (12).” Further, the release
required Brown to acknowledge “that any and all . . . workmen’s
compensation liens . . . related to or arising out of this subject matter have
been paid and satisfied . . . .” Brown did not accept the proposal, fearing
that doing so would extinguish not only his wrongful termination claim
but also his outstanding workers’ compensation petition against Travelers.
Final judgment on the wrongful termination claim was rendered in
favor of Andersen. Following judgment, Andersen timely moved for
entitlement to attorney’s fees and costs pursuant to the offer of judgment
statute and the statute providing for the recovery of costs. Brown opposed
the motion based on the ambiguities present in the proposal. Andersen
argued that the proposal was not meant to release Travelers, but was
meant to release a different insurer. Brown alleged that he was not aware
Andersen had an additional insurer.
A hearing was held on Andersen’s motion for entitlement to fees and
costs. The trial judge ultimately found that Andersen was not entitled to
fees and costs under section 768.79 because the proposal’s failure to
identify the insurer created an ambiguity within the proposal. Entitlement
to costs and taxation was not discussed at the hearing. The final order
denied Andersen’s motion for entitlement to costs and fees in full. This
appeal ensues.
We review ambiguities in proposals for settlement de novo. Land & Sea
Petroleum, Inc. v. Bus. Specialists, Inc., 53 So. 3d 348, 353 (Fla. 4th DCA
2011). “We review fee and cost awards under a mixed standard of review.
Factual findings must be supported by competent, substantial evidence,
while legal findings are reviewed de novo.” Webber for Keitel v. D’Agostino,
251 So. 3d 188, 191 (Fla. 4th DCA 2018) (citations, internal quotation
marks, and brackets omitted).
2
When a plaintiff has multiple outstanding claims, “settlement proposals
must clarify which of an offeree’s outstanding claims against the offeror
will be extinguished by any proposed release.” State Farm Mut. Auto. Ins.
Co. v. Nichols, 932 So. 2d 1067, 1080 (Fla. 2006); see also Nichols v. State
Farm Mut., 851 So. 2d 742, 746 (Fla. 5th DCA 2003) (“Rules 1.442(c)(2)(C)
and (D), Florida Rules of Civil Procedure, provide that relevant conditions
and all nonmonetary terms of the offer be stated with particularity.”).
Andersen argues that the proposal was unambiguous because it only
related to claims arising out of the instant litigation. However, because
Brown alleged that he believed that his termination was due to his workers’
compensation claim, he could reasonably believe that this was a claim
“related to or arising out of this subject matter.” See Palm Beach Polo
Holdings, Inc. v. Village of Wellington, 904 So. 2d 652, 653 (Fla. 4th DCA
2005) (holding a proposal ambiguous where “it could reasonably be read
to extinguish claims besides those related to the pending case”).
Further, the failure to name the parties to be released when there are
outstanding claims involving other parties can constitute an ambiguity.
See Dryden v. Pedemonti, 910 So. 2d 854, 856-57 (Fla. 5th DCA 2005) (“By
executing the general release proposed in this case, Pedemonti could have
been found by this court . . . to have extinguished any subrogated claim
against the tortfeasor then held or later acquired . . . .”). Even though
Travelers was not a defendant to the action, requiring Brown to release an
unnamed insurer and then failing to identify the insurer created
reasonable uncertainty as to whether accepting the proposal would
extinguish his outstanding workers’ compensation claim with Travelers.
Brown was unaware at the time the proposal was served that Andersen
had an additional insurer, not including Travelers, that was meant to be
released by the proposal. Therefore, it was reasonable for Brown to believe
that the insurer released by the proposal was Travelers. As a result, the
trial court did not err in finding that the proposal was ambiguous and not
able to support an award of attorney fees under section 768.79. We thus
affirm the trial court’s denial of an attorney fee award under section
768.79.
As to costs, however, we reverse and remand for a determination of a
costs award to Andersen as the prevailing party. Section 57.041, Florida
Statutes (2020), states: “The party recovering judgment shall recover all
his or her legal costs and charges which shall be included in the
judgment.” (emphasis added). The award of such costs is not discretionary
and “the party in whose favor judgment is entered to an award of all
taxable costs, as a matter of law.” Bessey v. Difilippo, 951 So. 2d 992, 993
(Fla. 1st DCA 2007). As Anderson was the prevailing party, the trial court
had no discretion to deny costs.
3
Brown contends that Andersen waived its right to costs under section
57.041 by not addressing taxation in its response to Brown’s opposition
or at the hearing on Andersen’s motion for fees and costs. However,
Florida Rule of Civil Procedure 1.525 requires only that a party seeking
costs serve a motion no later than thirty days after the filing of judgment;
it does not require that supplemental documentation be served within
such time. See P & R Smith Corp. v. Goyarrola, 864 So. 2d 584, 584 (Fla.
3d DCA 2004). Andersen was not required to deliver supplemental
documentation regarding taxation of costs prior to either filing its
entitlement motion or the entitlement hearing. Denying costs under
section 57.041 in the absence of an evidentiary hearing regarding
entitlement to those costs is error and must be reversed. See Tesla Elec.,
Armature & Mach., Inc. v. JLM Advanced Tech. Servs., Inc., 128 So. 3d 865,
866 (Fla. 1st DCA 2013).
Accordingly, we affirm the trial court’s denial of attorney’s fees under
section 768.79. However, we reverse and remand for an evidentiary
hearing regarding Andersen’s entitlement to costs under section 57.041.
Affirmed in part, reversed in part, and remanded.
WARNER and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
4