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Hibbard v. McGraw12/2/2005
shall appear on her own behalf as to her individual claims. Faith Carr Hibbard shall remain as a party Plaintiff as to her parental claim for general damages and claim for medical bills while Amanda Carr was a minor."
Prior to trial, Carr moved to strike the defendants' offer for settlement on the basis it did not specify the amount attributable to each plaintiff; i.e., to Carr and to her mother. The court rejected this argument ruling that the defendants were entitled to settle with one of the plaintiffs without regard to settling with the other.
At the November 13, 2001 trial, Brock and Carr, as well as McGraw and his passenger, testified to their recollections of the accident. Numerous experts testified for both sides.
The jury found Brock 70% negligent, Carr 25% negligent and McGraw 5% negligent and awarded the following damages.
$104,766.44
| $100,000.00
| $100,000.00
| $50,000.00
| $10,000.00
| $364,766.44
|
Both sides moved for entry of final judgment in their favor. The defendants also moved for attorney's fees and costs based on their proposal for settlement.
The trial court concluded the defendants were not jointly and severally liable since McGraw was found to be less than 10% at fault and less at fault than Carr. The court found the defendants' liability amounted to $18,238.32 (5% of the total award of $364,766.44) and they were entitled to a setoff for $72,966.09 from collateral sources, which far exceeded their liability. Thus the court entered judgment in favor of the defendants. Based on the unaccepted proposal for settlement, the court ordered Carr only (not her mother) to pay the defendants $18,460.60 in attorney's fees.
I. Offer of Judgment
The requirements for a valid proposal for settlement are set forth in section 768.79 and Florida Rule of Civil Procedure 1.442. The language in rule 1.442 must be strictly construed because the offer of judgment statute and rule are in derogation of the common law rule that each party pay its own attorney's fees. Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So. 2d 276 (Fla. 2003). In Loy v. Leone, 546 So. 2d 1187 (Fla. 5th DCA 1989), this court noted the purpose of rule 1.442 is to sanction a party who does not timely accept a settlement offer made prior to trial by shifting payment and recovery of costs after the offer is made. In effect, it is a punitive measure and therefore should be construed in favor of the party to be sanctioned. But for the offer of judgment statute, the defense would have to pay its own attorney's fees.
Because the offer of judgment statute and related rule must be strictly construed, virtually any proposal that is ambiguous is not enforceable. Barnes v. The Kellogg Company, 846 So. 2d 568 (Fla. 2d DCA 2003). For example, in Dudley v. McCormick, 799 So. 2d 436 (Fla. 1st DCA 2001), the appellate court reversed the award of attorney's fees where the defendant offered to settle with the mother, individually and as best friend and next of kin of her minor son, and her son, in their personal injury action after the son was injured in an automobile accident. The proposal for settlement did not specify separate amounts for the mother and son or designate only one plaintiff as the offeree.
On appeal, the court noted the mother was the real party in interest insofar as her own individual claims were concerned. However, she was not the real party in interest insofar as her son's claims were concerned -- rather she was a
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