Palmentere Bros. Cartage Service, Inc., Randy Jones, and Cherokee Insurance Company, Appellants,
Heather Copeland and Phillip Copeland, her husband, Appellees.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Duval County. Thomas M.
Fernandez, III and Austin Brown of Fernandez Trial Lawyers,
P.A., Jacksonville, for Appellants.
R. Gooden of Boyd & Jenerette, PA, Jacksonville; Robert
M. Klein and Andrew M. Feldman of Klein Glasser Park &
Lowe, P.L., Miami, for Florida Defense Lawyers Association,
Amicus Curiae in support of Appellants Palmentere Bros.
Cartage Service, Inc. and Cherokee Insurance Company.
Benjamin E. Richard, Curry Gary Pajcic, and William A. Bald
of Pajcic & Pajcic, P.A., Jacksonville, for Appellee
M. Burlington and Adam Richardson of Burlington &
Rockenbach, P.A., West Palm Beach, for Florida Justice
Association, Amicus Curiae in support of Appellees Heather
Copeland and Phillip Copeland.
September 21, 2010, a tractor-trailer truck owned by
Palmentere Brothers Cartage Service, Inc., and operated by
its employee, Randy Jones ("Appellants" or
"PBCS"), collided with a vehicle being driven by
Heather Copeland. Copeland successfully sued for damages.
Appellants now raise five points urging reversal of the
verdict and post-verdict rulings by the trial court. We
affirm, except as to the order finding entitlement to section
768.79-based fees and expenses.
to trial, Copeland served PBCS with a proposal for settlement
in the amount of $345, 000 pursuant to section 768.79,
Florida Statutes (2010), and Florida Rule of Civil Procedure
1.442. In paragraph 2, the proposal stated:
This proposal is attempting to resolve Plaintiff's claim
against Defendant PALMENTERE BROS. CARTAGE SERVICE, INC. and,
if accepted, resolves all damages that would otherwise be
awarded in a final judgment in the action as to PALMENTERE
BROS. CARTAGE SERVICE, INC. only.
additional documents were served with the proposal-one
entitled "Release of Claims" and the other,
"Voluntary Dismissal with Prejudice." In paragraph
3 of the proposal, Copeland promised that in exchange for the
above payment, she would execute the "Release of
Claims" against PBCS, and file the "Voluntary
Dismissal with Prejudice" as to all claims against PBCS.
Then, in paragraph 5, the proposal stated: "There are no
claims for punitive damages in the case and none of the
proposed settlement amount is for punitive damages." The
"Release of Claims" provided that Copeland
"releases and forever discharges [PBCS], from all claims
and causes of action which [Copeland] ever had or now has
against [PBCS], arising out of the accident of which is the
subject of the above styled case." In its turn, the
"Voluntary Dismissal with Prejudice" stated:
"[T]he above-styled cause is dismissed, with prejudice
as to only [PBCS]."
rejected the proposal and successfully moved for a
continuance of the approaching trial. In the interim,
Copeland filed a Fourth Amended Complaint that asserted, for
the first time, a claim for punitive damages against PBCS.
The jury returned a verdict awarding Heather Copeland $400,
000 in compensatory damages-reduced by ten percent based on
comparative fault-but zero damages in favor of her husband,
Phillip Copeland, on his loss of consortium claim.
Additionally, the jury found PBCS individually liable for $1
million in punitive damages.
Copeland filed her "Motion for Taxation of
Attorney's Fees and Investigation Expenses"
predicated on the unaccepted proposal for settlement. Two
hearings were held on the motion during which the trial court
heard lengthy legal argument as to whether PBCS
"beat" the proposal for settlement because, given
the reduction in the compensatory damages due to her ten
percent comparative fault, Copeland only recovered $360, 000-
clearly not twenty-five percent more than the amount of the
offer- and because Copeland had disclaimed punitive damages
in her proposal-which disclaimer, according to PBCS, rendered
the proposal for settlement ambiguous. The judge was not
persuaded. In its ensuing order, the court announced that
given the award of punitive damages, Copeland had recovered
$1, 360, 000, an amount "significantly more tha[n] 25%
greater than ...