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Wagner v. Brandeberry6/2/2000
Appeal from the Circuit Court for Hillsborough County; Gregory P. Holder, Judge.
Anthony Wagner challenges the trial court's order denying him an award of attorney's fees pursuant to his proposal for settlement served on Steve Brandeberry under section 768.79, Florida Statutes (1997). The trial court concluded that Wagner had forfeited his entitlement to fees because he did not serve his proposal for settlement in good faith. We reverse because the trial court relied on considerations irrelevant to the determination of good faith in reaching its conclusion.
Wagner sued Patrick Hamilton, Steve Brandeberry, and Thrifty Rental Finance Corporation for personal injuries Wagner sustained in an auto accident that occurred in 1997. The vehicle that struck Wagner was owned by Thrifty, rented to Brandeberry, and driven by Hamilton with Brandeberry's permission. Wagner's complaint alleged that Hamilton negligently operated the vehicle and that Thrifty and Brandeberry were vicariously liable for Hamilton's negligence under the dangerous instrumentality doctrine. Thrifty subsequently filed a cross-claim against Hamilton for common law indemnity and against Brandeberry for both common law and contractual indemnity.
In 1998, Wagner served a proposal for settlement for $750,000 on all three defendants jointly. None of the defendants responded to this proposal. Thereafter, Thrifty, Brandeberry, and Hamilton served a joint proposal for settlement on Wagner for $325,000. The amount offered was apportioned as $300,000 on behalf of Brandeberry and $25,000 on behalf of Thrifty and Hamilton. Wagner did not accept this proposal. Shortly thereafter, however, Wagner served a proposal for settlement on Brandeberry alone for $299,000. Brandeberry did not accept this proposal.
At trial, the jury found Hamilton 100% at fault and awarded Wagner $551,355.58 in damages. Thrifty and Brandeberry stipulated to their vicarious liability, and the trial court entered a final judgment against all defendants jointly and severally. The trial court later entered an amended final judgment against Hamilton and Brandeberry, jointly and severally, on Thrifty's cross-claims.
Following entry of the final judgment, Wagner moved for attorney's fees and costs against Brandeberry based on the proposal for settlement served on Brandeberry alone. At hearings on the motion, Brandeberry conceded that Wagner's proposal and the jury's verdict mathematically triggered section 768.79 and created an entitlement to fees. However, Brandeberry challenged Wagner's entitlement to a fee award, arguing that Wagner should not be entitled to fees because Brandeberry acted reasonably in rejecting the proposal due to the pending cross-claim and because the proposal would not have completely eliminated Brandeberry from the litigation. To show he was entitled to fees, Wagner established that he had a reasonable foundation for his $299,000 proposal to Brandeberry based on the prior joint proposal in which Brandeberry offered $300,000. Wagner also established that Brandeberry's attorney had recommended that Brandeberry accept Wagner's proposal and that Brandeberry's insurer was prepared to pay the proposed amount. Despite this evidence, the trial court concluded that Wagner had not served his proposal in good faith and denied Wagner's motion for fees.
On appeal, the parties do not dispute that Wagner's proposal for settlement and the subsequent jury verdict mathematically triggered section 768.79 so as to entitle Wagner to an award of fees. The only question is whether Wagner forfeited his entitlement to fees by not serving his proposal in good faith. See T.G.I. Fridays, Inc. v. Dvorak, 663 So. 2d 606, 611 (Fla.
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