Lillian SAENZ, Appellants, v. Jose G. CAMPOS and State Farm Mutual Automobile Insurance Company, Appellees.
No. 4D07-855
District Court of Appeal of Florida, Fourth District
November 14, 2007
967 So.2d 1114
Neil Rose of Bernstein, Chackman & Liss, Hollywood, for appellees.
MAY, J.
Technical compliance with
The plaintiff filed suit against the other driver and her uninsured motorist [UM] insurer following a motor vehicle accident.1 During litigation, the plaintiff served a civil remedies notice on her UM insurer. The plaintiff then filed a notiсe of service of proposal for settlement on the same insurer, pursuant to
3. This proposal is meant to resolve all claims by the Plaintiff . . . against the Defendant. . . .
4. There are no conditions to this offer.
5. The proposal to settle the claim is that Defendant . . . pay to the Plaintiff . . . sum of Forty Nine Thousand, Five Hundred ($49,500.00) Dollars, in a lump sum payment within 30 days of the service of this Proposal for Settlement, in full settlement of the claims raised in the suit against Defendant,. . . .
6. There are no punitive damages. No offer is being made for punitive damages.
7. This proposal does not include any attorney‘s fees which аre not a part of the legal claim.
8. This Proposal for Settlement will remain open for Thirty (30) days from service on the Defendant. . . .
(Emphasis supplied). The insurer did not accept the proposal for settlement; the case went to trial.
The ambiguity argument fоcused on paragraphs 3 and 5 of the proposal. Paragraph 3 indicated that the proposal would resolve “all claims” against the insurer while paragraph 5 indicatеd that the proposal would resolve only “the claims raised in the suit.” Thus, the insurer argued it was unclear whether the proposal addressed the bad faith claim that had been noticed undеr the civil remedies statute. The plaintiff responded that the proposal was not ambiguous because all claims against the insurer arose out of the same case. And, since the case was resolved within the policy limits, the issue of the civil remedies notice became moot.
The trial court found the proposal for settlement ambiguous and reminded the parties that the proposal must be reviewed at the time it was offered. The court found the conflicting provisions in paragraphs 3 and 5 left the terms of the proposal unclear.
The insurer argued secondarily that the proposal was facially defective because it failed to state, as a non-monetary term or as a relevant condition, how the case would be resolved. The insurer argued that absent details on the disposition of the case (voluntary dismissal with prejudice, stipulation and order, dismissal for lack of prosecutiоn, execution of a release), additional judicial labor might be required after acceptance of the proposal.
The plaintiff responded that the proposal for settlement complied with the letter of
We give proposals for settlement de novo review. Jamieson v. Kurland, 819 So.2d 267, 268 (Fla. 2d DCA 2002); accord Miami-Dade County v. Ferrer, 943 So.2d 288, 290 (Fla. 3d DCA 2006).
The proposal fails to satisfy the “particularity” requirement if an ambiguity within the proposal could reasonably affect the offeree‘s decision. Nichols, 932 So.2d at 1079. While a proposal fоr settlement may settle only a portion of a lawsuit, it
So, what then constitutes an ambiguity? Ambiguity is defined as “the condition of admitting morе than one meaning.” The Random House College Dictionary 42 (revised ed. 1980). No one can claim that paragraphs 3 and 5 say the same thing. They simply don‘t. That conflict in the wording created the ambiguity that supported the trial cоurt‘s striking of the proposal.
Ambiguities can be either patent or latent. A patent ambiguity is one that appears on its face. “A latent ambiguity — as distinct from a patent ambiguity — arises `where the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings.‘” Mac-Gray Servs., Inc. v. Savannah Assocs. of Sarasota, LLC., 915 So.2d 657, 659 (Fla. 2d DCA 2005) (quoting Ace Elec. Supply Co. v. Terra Nova Elec., Inc., 288 So.2d 544, 547 (Fla. 1st DCA 1974)). The ambiguity in this case is patent.
The dissent takes the position that the wording alone is insufficient and it is the practical effect of the conflicting language that must be looked at to determine an ambiguity. In other words, the dissent suggests that if the proposal had been paid, then the practical effect of the conflicting language disappeared because no bad faith claim would have survived. We find that analysis flawed for two reasons.
First, the plaintiff continuously maintained that it intended to pursue the bad faith claim if the proposal was rejected, and was unwilling to agree that the claim was included in the proposal. It would not be until the ultimate final judgment was rendered that it could be determined whether еxcess judgment bad faith claim existed. Second, a common law bad faith claim other than for an excess verdict existed as
For these reasons, we find the trial court correctly struck the proposal and therefore affirm. Becаuse we affirm the order striking the proposal for settlement on the trial court‘s finding that the proposal was ambiguous, we decline to address the secondary basis for striking the proposal — the proposal failed to include the terms for disposing of the case.
Affirmed.
POLEN J., concurs.
KLEIN, J., dissents with opinion.
KLEIN, J., dissenting.
I am unable to find that paragraph 3 and paragraph 5 create an ambiguity. No one contеnds that there is an “or” or an “either” between the numbered provisions of the proposal for settlement. Thus all numbered provisions are operative.
I agree that the provisiоn in paragraph 3 stating that the proposal will “resolve all claims” is broader than the one in paragraph 5 which says that it is in “full settlement of the claims raised in the suit.” The difference, however, is irrelevant, because it could not possibly leave State Farm in doubt. Resolving “all claims” would obviously include the possible claim contemplated by the civil remedies notice which plaintiff had served on State Farm.
The question, which neither State Farm nor the majority has answered to my satisfaction is, if State Farm had accepted the
It was not clear whether the offer was meant to settle just the “claims raised in the suit” as noted in paragraph 5 or “all claims” (including the bad faith claim) as noted in paragraph 3.
State Farm erroneously assumes there is an “or” when, as I indicated above, there was not. The proposal is to “resolve all claims” and “the claims raised in the suit.”
The majority does not answer my question either. The majority says that “plaintiff continuously maintainеd that it intended to pursue the bad faith claim if the proposal was rejected, and was unwilling to agree that the claim was included in the proposal.” I find no support in the record for the second portion of this statement, and I don‘t see any relevance to the fact that the plaintiff was going to pursue the bad faith claim if the proposal was rejectеd. The only issue here is whether, if State Farm accepted the proposal, there would be any uncertainty as to whether plaintiff could pursue any other claims, and I fail to understand how the “resolve all claims” language leaves any uncertainty.