Florida’s Second DCA Holds Proposals For Settlement Served Prior to Amendments to 1.442, Florida Rules of Civil Procedure Valid and Enforceable Because They Satisfied the Law in Effect at the Time they were Made!
Congratulations to Florida Peninsula Insurance Company on a win after a win!
In Stevens v. Florida Peninsula Insurance Company, Kimberly Salmon secured a summary judgment on another Mark Nation cast iron pipe case at the trial level. Florida Peninsula earlier served each plaintiff with individual proposals for settlement with general releases. After the judgment, plaintiffs argued the individual proposals for settlement and general releases were ambiguous and therefore unenforceable. The trial court granted Florida Peninsula’s Motion for Entitlement to Attorney’s Fees. The plaintiffs appealed and the Second DCA just affirmed.
On appeal, Stevens argued that the proposals for settlement were invalid because they were overbroad, ambiguous, and not made in good faith. Plaintiffs’ counsel took issue with the general release that was attached to each proposal for settlement. However, when questioned by one of the appellate judges, plaintiffs’ counsel could not explain why he did not advise defense counsel of these alleged ambiguities at any time. Rather, plaintiffs’ counsel stated he counseled his clients the proposals were likely invalid.
At oral argument, Joseph A. Matera argued the proposals for settlement, even with the general releases attached, were valid because the law at the time allowed for proposals for settlement to include general releases. Mr. Matera also argued the proposals for settlement were not ambiguous in that they comported with Florida law at the time the proposals were served and the conditions and non-monetary terms were stated with particularity. As to the proposals being served in good faith, Mr. Matera explained the offer should bear a reasonable relationship both to the amount of the damages and a realistic assessment of liability. It was clear based on the record that at the time the proposals for settlement were served, Defendant’s summary judgment arguments relating to a lack of prompt notice were especially strong. Judge Moe provided some of the facts within her thirty (30) page concurring opinion, which can be accessed here:
In July 2016, they [the plaintiffs] learned that the cast iron drain line under their kitchen cabinet and floor had broken. A plumber told them that it would be necessary to chip up their terrazzo flooring and replace the broken cast iron pipe with PVC. After learning this, the Stevenses waited to make their claim with Florida Peninsula for a full year.
The Stevenses have an explanation for why they waited to make the claim: a developer was thinking about making an offer on their house to tear it down. To them, it was preferable to sell the house.
The choice to wait on the developer meant that Mr. and Mrs. Stevens lived in their home without ready access to running water for one full year. They kept the water main turned off during that time. If they needed running water in the house – whether to shower, wash dishes, brush their teeth, or anything else – they would go outside, turn on the water main, and then go back outside and shut it off again as quickly as they could. If the water was running more than thirty minutes or so, they would find water on the floor of the kitchen and living room.
In the year that they waited, water damage became evident. They saw paint coming off the baseboards in the living room and kitchen. Still, they held out hope and did not make a claim with Florida Peninsula. Instead, they dried out the baseboards with fans and painted them.
The offer from the developer never came. It was the notification that the developer did not wish to buy that house that led the Stevenses to make a claim to Florida Peninsula on July 6, 2017.
On August 29, 2025, the Second DCA affirmed the trial court’s order entitling Florida Peninsula to attorneys’ fees and costs based on the expired proposals for settlement. The Court agreed with Florida Peninsula’s position that it was permissible to include general releases with proposals for settlement because “prior to the 2022 rule amendment excluding nonmonetary terms, the mere inclusion of a release was not a bar to enforcement of a proposal for settlement.”
In the concurring opinion, Judge Moe agreed with the majority opinion because the proposals for settlement complied with the law at the time they were served. She also analyzed Diecidue v. Lewis, 223 So. 3d 1015 (Fla. 2d DCA 2017), where the Second DCA emphasized, “It is a better practice for an offeree to raise any ambiguities in proposals for settlement with the offeror before trial. This will increase the probability that any subsequent offers may better reflect the intent of the parties and better ensure that courts are not unnecessarily injected into disputes that can otherwise be amicably resolved.”
The Diecidue language is not merely dicta but creates an expectation that if “you [offeree] see something, say something” because objections to proposals for settlement should be articulated while there is time for the offeror to address the objection by serving a new proposal. Judge Moe further explained “once we clarified the better practice in Diecidue, litigants who chose not to follow that better practice did so at their own risk”.
The Second DCA also entered an Order entitling Florida Peninsula to Appellate Attorneys’ Fees.