Generally speaking, civil courts in Florida follow what is referred to as the “American rule,” under which each party is responsible for his or her own attorney fees. There are, of course, certain exceptions to the rule. One of the most important exceptions for personal injury litigants is the Florida Settlement Rule.
Set forth in Florida R. Civ. Prov. 1.442 and Florida Statutes § 768.79, the rule allows a court to award attorney fees and costs in limited situations. Although the amount that a court may order under the rule is typically less than the amount that the litigant owes his or her attorney under the contract between them, it does help offset some of these fees.
In order to recover attorney fees under the rule, there are several requirements. First of all, the party who was ultimately successful in the suit at trial must have made a settlement offer to the opposing party at least 45 days prior to trial. Secondly, the successful party must have recovered a judgment that was at least 25% more in his or her favor than the offer (i.e., for the plaintiff to recover fees, the judgment must be 25% or more than the amount for which he or she offered to settle; for the defendant to recover fees, the judgment has to be at least 25% less than his or her settlement offer.)
Florida Supreme Court Reviews Case in Which Rule Was as Issue
Early this year, the Florida Supreme Court was called upon to determine the applicability of the rule in a particular car accident case. In Audiffred v. Arnold, the plaintiffs were a husband and wife who filed a negligence lawsuit against the defendant driver, seeking compensation for the wife’s injuries, the husband’s loss of the wife’s consortium, and property damage to their automobile. Prior to trial, the wife made an offer to settle the case for $17,500. The offer stated that both plaintiffs would dismiss their claims if the offer was accepted, but only the wife’s name was listed as the party making the offer.
The defendant did not respond to the offer within 30 days, thereby constructively refusing it. At trial, the jury returned a verdict in the amount of $26,055.54 for the wife’s past medical expenses. The jury did not make any award for the wife’s alleged permanent damages, nor did it award anything to the husband for loss of consortium. The plaintiffs sought attorney fees and costs under the Florida Settlement Rule, and the trial court granted their motion. The intermediate appeals court reversed the trial court’s award of fees and costs to the plaintiffs, and they appealed.
The Court’s Decision
After considering the parties’ respective arguments, the court affirmed the intermediate court’s order disallowing the plaintiffs’ motion for fees and costs. The court so held because it found that both the statute and the rule required that a settlement proposal made in regard to multiple parties be considered a joint proposal. As such, the proposal required apportionment of the proposed settlement between such parties. Since the proposal at issue would have settled both the wife’s injury claims and the husband’s loss of consortium claims, it should have detailed how the proposed settlement would have been allocated between them. Inasmuch as it failed to do so, it did not comply with the rule. Thus, the plaintiffs were not entitled to an award of fees and costs.
To Get Help with Your Florida Accident Case
If you have been involved in a motor vehicle accident and need legal advice, call the law firm of Cohn & Smith at 954-431-8100. We will be glad to set up a free initial consultation to discuss your case. It is important that those injured in accidents seek legal counsel as soon as possible after being hurt so that a full investigation can be made while the evidence is still fresh and the filing deadlines set forth by the statute of limitations may be met. Our Fort Lauderdale injury attorneys handle cases throughout South Florida, including in Hollywood, Davie, and North Dade County.
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