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McCoy v. R.J. Reynolds Tobacco Co.

Florida Court of Appeals, Fourth District

October 25, 2017

JOHN MCCOY, Appellant,
v.
R.J. REYNOLDS TOBACCO COMPANY, Individually and As Successor By Merger To BROWN & WILLIAMSON TOBACCO CORPORATION, Individually and As Successor By Merger To THE AMERICAN TOBACCO COMPANY, A Foreign Corporation; PHILIP MORRIS - USA, INC., A Foreign Corporation; LORILLARD TOBACCO COMPANY, A Foreign Corporation; LIGGETT GROUP LLC, (f/k/a Liggett Group, Inc., f/k/a Liggett & Myers Tobacco Company); and VECTOR GROUP LTD., INC., (f/k/a Brooke Group, Ltd.), A Foreign Corporation, Appellees.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; John J. Murphy III, Judge; L.T. Case No. 08-25806 CACE (19) and 08-80000 CACE (19).

          Celene H. Humphries, Shea T. Moxon, Maegen P. Luka and Thomas J. Seider of Brannock & Humphries, Tampa; and Scott Schlesinger, Steven Hammer, Jonathan R. Gdanski and Brittany Chambers of Schlesinger Law Offices, P.A., Fort Lauderdale, for appellant.

          Scott Michael Edson of King & Spalding LLP, Washington, D.C.; Val Leppert, William L. Durham II, and Chad A. Peterson of King & Spalding LLP, Atlanta, Georgia; and Stephanie E. Parker and John M. Walker of Jones Day, Atlanta, Georgia, for appellees, R.J. Reynolds Tobacco Company and Lorillard Tobacco Company.

          Geoffrey J. Michael of Arnold & Porter LLP, Washington, D.C., for appellee, Philip Morris USA Inc.

          Gross, J.

         We reverse the circuit court's order denying a motion for attorney's fees based upon a 2014 proposal for settlement under section 768.79, Florida Statutes (2015).[1]

         On July 24, 2014, the plaintiff/appellant served a proposal for settlement on each of three defendants. The proposals were served by U.S. certified mail. The plaintiff also filed a Notice of Serving Proposal for Settlement via e-mail on the same date.

         The defendants had actual knowledge of the proposals for settlement and did not accept them.

         After a trial, the plaintiff obtained a verdict that entitled him to attorney's fees under section 768.79. The plaintiff moved for attorney's fees. The defendants opposed an award on procedural grounds ― that he failed to e-mail the proposals under Florida Rule of Judicial Administration 2.516.

         The circuit court denied the motion for fees for the failure to comply with Rule 2.516.

         Where a party has actual notice of an offer of settlement, and the offering party has satisfied the requirements of section 768.79 on entitlement, to deny recovery because the initial offer was not e-mailed is to allow the procedural tail of the law to wag the substantive dog. See Kuhajda v. Borden Dairy Co. of Ala., LLC., 202 So.3d 391, 395-96 (Fla. 2016). We agree with the analysis of Judge Badalamenti in Boatright v. Philip Morris USA Inc., 218 So.3d 962 (Fla. 2d DCA 2017).

         The focus of the statute is on actual notice - an offer of judgment is required to be "served upon the party to whom it is made, but it shall not be filed unless it is accepted or unless filing is necessary to enforce the provisions of this section." § 768.79(3), Fla. Stat. (2014). Echoing the requirements of the statute, Florida Rule of Civil Procedure 1.442(d) provides that an offer "shall be served on the party or parties to whom it is made but shall not be filed unless necessary to enforce the provisions of this rule."

         Identifying those documents for which e-mail service is required, Rule ...


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