182 So. 3d 924
Fla. Dist. Ct. App.2016Background
- Jan and Wade Colvin sued North Florida Women’s Care for medical malpractice alleging surgical clamps were left in Jan Colvin; complaint did not seek attorney’s fees or punitive damages.
- Plaintiff served a proposal for settlement offering $20,000 “inclusive of costs and attorney’s fees” and stating it would resolve all claims “including, but not limited to, any claims for punitive damages.”
- Defendant rejected the proposal; a jury returned a verdict at least 25% greater than the offer.
- Plaintiff moved for attorney’s fees under § 768.79 and Fla. R. Civ. P. 1.442 after beating the offer; defendant objected that the proposal failed to comply with rule 1.442(c)(2)(E)-(F) by not stating whether fees or punitive damages were part of the legal claim.
- Trial court denied fees based on strict-compliance precedent (Diamond Aircraft); the First District affirmed and certified conflict with the Fourth District’s decision in Bennett.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a proposal that did not plead fees or punitive damages but stated it was "inclusive of costs and attorney’s fees" and would resolve "any claims for punitive damages" satisfies Rule 1.442 and § 768.79 so as to support a post-verdict fee award | The offer substantially complied with the statute and rule; strict literal compliance would produce an absurd/unjust result when fees and punitive damages were not pleaded and thus could not have been claimed in the complaint | The proposal failed to meet rule 1.442(c)(2)(E)-(F) because it did not expressly state whether attorney’s fees or punitive damages were part of the legal claim; strict compliance is required | Affirmed: strict compliance required under Diamond Aircraft and subsequent First DCA precedent; the offer was insufficient and fees were denied |
| Whether this panel should follow Bennett (4th DCA) approach that allows less-than-perfect compliance when offers are unambiguous | Plaintiff urged application of Bennett to avoid an unjust result | Defendant urged continued adherence to Supreme Court and First DCA strict-compliance line | The court rejected Bennett and certified conflict with it, reaffirming strict-compliance rule |
Key Cases Cited
- Diamond Aircraft Indus. v. Horomchik, 107 So.3d 362 (Fla. 2013) (requires strict compliance with § 768.79 and Rule 1.442 for proposals to support fee awards)
- Borden Dairy Co. v. Kuhajda, 171 So.3d 242 (Fla. 1st DCA 2015) (reaffirmed strict construction of statute and rule)
- Bennett v. American Learning Sys. of Boca Delray, Inc., 857 So.2d 986 (Fla. 4th DCA 2003) (allowed less-than-perfect compliance where offer was unambiguous; court certified conflict)
- Pratt v. Weiss, 161 So.3d 1268 (Fla. 2015) (fee-shifting statute and rule construed strictly)
- Campbell v. Goldman, 959 So.2d 223 (Fla. 2007) (reversed fee award for noncompliant offer)
- Willis Shaw Exp., Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla. 2003) (strict construction of statute and rule regarding apportionment)
- Unicare Health Facilities, Inc. v. Mort, 553 So.2d 159 (Fla. 1989) (statutory rule construing offers as including all damages to promote settlement)