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D.A.B. Constructors10/21/2005
D.A.B. Constructors, Inc., and Cornell Cox, the defendants below, appeal from the denial of their motion for attorney's fees based upon their joint proposals of settlement made to John Oliver and his wife Teresa Oliver, the plaintiffs below, which the trial court ruled were invalid. In light of the extremely broad language in the Florida Supreme Court's recent opinion in Lamb v. Matetzschk, 906 So. 2d 1037 (Fla. 2005), we are constrained to affirm the trial court's ruling.
The facts in this case are not in dispute. On July 20, 1999, Cox and John Oliver were involved in a motor vehicle collision. Cox, an employee of D.A.B., was driving D.A.B.'s vehicle within the scope of his employment. Oliver filed a single count personal injury complaint against D.A.B. and Cox, jointly and severally. The complaint was later amended to add Teresa Oliver as a co-plaintiff, added a count for loss of consortium and again asserted joint and several liability.
On November 5, 2001, the defendants made a joint proposal for settlement to John to settle all claims raised in the action. On the same day, the defendants made a joint proposal for settlement to Teresa to settle all claims raised in the action. Each proposal addressed all of the matters required under Florida Rule of Civil Procedure 1.442, except that neither apportioned the amount of the offer between the defendants. Neither proposal was accepted.
On April 9, 2002, the Olivers filed a second amended complaint. On December 5, 2002, the defendants again made joint proposals for settlement to each of the Olivers. Each proposal sought to settle all claims raised in the action and otherwise complied with the requirements of rule 1.442, but did not apportion the amount of the offer between the defendants. Neither proposal was accepted.
On January 16, 2003, the defendants again filed joint proposals for settlement. Once again, neither proposal was accepted.
The case proceeded to trial and resulted in a directed verdict in favor of the defendants. The trial judge reserved ruling on the defendants' entitlement to attorney's fees pending resolution of the appeal. This court subsequently affirmed the directed verdict. Oliver v. D.A.B. Constructors, Inc., 876 So. 2d 575 (Fla. 5th DCA 2004).
The trial judge later heard argument of counsel regarding the defendants' entitlement to attorney's fees, and denied the motion after finding the proposals for settlement were invalid. The judge concluded the proposals were invalid because they did not comply with section 768.79, Florida Statutes, Rule 1.442 or the Florida Supreme Court's holding in Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So. 2d 276 (Fla. 2003), as interpreted by this court in Matetzschk v. Lamb, 849 So. 2d 1141 (Fla. 5th DCA 2003).
Section 768.79, Florida's offer of judgment statute, is implemented by rule 1.442. Specifically, rule 1.442(c)(3) provides:
A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party.
The language must be strictly construed because the statute and rule are in derogation of the common law rule that each party pay its own fees. See, e.g., Major League Baseball v. Morsani, 790 So. 2d 1071, 1077-78 (Fla. 2001).
In Lamb v. Matetzschk, 906 So. 2d 1037 (Fla. 2005), the Florida Supreme Court recently reviewed this court's decision in Matetzschk which had certified conflict with Barnes v. The Kellogg Co., 846 So.2d 568 (Fla. 2d DCA 2003). Barnes involved the same scenario as this case -- two defendants, jointly liable, who ma
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