On May 11, 2017, Safepoint served separate proposals for settlement on both Ms. Brown and Ms. Reid, offering each $2,500. If either accepted the proposal, she would agree to indemnify Safepoint for attorneys’ fees and costs, including any incurred from continuing litigation should the other party not settle. Safepoint’s proposal to Ms. Reid stated:

Upon acceptance of this Proposal, Plaintiff shall defend and indemnify SAFEPOINT INSURANCE COMPANY, against any and all claims in any way related to the subject matter of this litigation, including, but not limited to, any remaining claims by SHANIKA BROWN, any other named or omnibus insured(s), any mortgagees, any public adjusters, and any and all attorney’s fees, costs, and expenses incurred by SAFEPOINT INSURANCE COMPANY in defending the same, as well as any attorney’s fees and costs incurred in defense of such claims.

Ms. Brown received an identical proposal, except that it required indemnification against Ms. Reid.

On September 27, 2017, the trial court granted summary judgment in favor of Safepoint.

Safepoint then moved to recover attorneys’ fees and costs.

After a hearing, the trial court denied Safepoint’s motion, concluding that its proposals were, “at a minimum ambiguous, and violate[d] the differentiation requirement under Florida Rule of Civil Procedure 1.442(c)(3).”

Safepoint appealed.

The Appellate Court’s Decision

The appellate court affirmed.

In its decision, the appellate court explained that Rule 1.442(c)(3) requires that a joint proposal for settlement “state the amount and terms attributable to each party.” It added that Florida Statutes Section 768.79(6)(b) requires courts to weigh “the amount of the offer” against “the judgment obtained.”

The appellate court then pointed out that, in Attorneys’ Title Ins. Fund, Inc. v. Gorka, 36 So. 3d 646 (Fla. 2010), the Florida Supreme Court held that a proposal by an insurance company to multiple offerees was invalid because the proposal did not allow each individual offeree “to settle the suit knowing the extent of his or her financial responsibility.” The Florida Supreme Court reasoned that if a proposal required mutual agreement and only one party agreed, he or she was forced to participate in further litigation out of his or her control, which went against the goal of ending litigation through settlements.

Here, the appellate court found, Safepoint’s proposals “would only cause further litigation.” If Ms. Brown accepted Safepoint’s proposal and Ms. Reid continued litigation, Ms. Brown would be obligated to pay Safepoint “an indeterminable amount of money,” which went against the particularity requirement of Rule 1.442.

Moreover, the appellate court continued, the trial court could not weigh the proposed amount versus the judgment as required by Section 768.79 because the future legal fees were an unknowable variable to be subtracted from the offered $2,500. Indeed, the appellate court observed, the proposals prevented Ms. Brown and Ms. Reid from independently evaluating the offer. “[A]bsent joint acceptance, a settling plaintiff would be unable to evaluate her true financial exposure.” As such, the appellate court ruled, the proposals divested Ms. Brown and Ms. Reid “of independent control of the decision to settle,” were tacitly contingent upon joint acceptance, failed to identify financial exposure, and were “patently ambiguous.”

The appellate court concluded that although indemnity provisions were permissible in an offer of judgment, in this case, acceptance of Safepoint’s proposals only could serve to guarantee additional litigation rather than a fair settlement of the dispute.

The case is Safepoint Ins. Co. v. Brown, No. 3D18-347 (Fla. Ct. App. Aug. 7, 2019). Attorneys involved include: Cole Scott & Kissane, P.A., Kathryn L. Ender, Scott A. Cole and Therese A. Savona, for appellant. Barnard Law Offices, L.P., and Garrett William Haakon Clifford, for appellees.