final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Bronwyn
C. Miller, Judge. Lower Tribunal No. 16-3233.
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.
EMAS, C.J., and FERNANDEZ, and SCALES, JJ.
defendant, Safepoint Insurance Company
("Safepoint"), appeals the trial court's order
denying its Motion for Attorneys' Fees and Costs. Because
the indemnity provision in Safepoint's proposals for
settlement was ambiguous and would cause additional
litigation rather than fair settlement of the dispute, we
31, 2015, plaintiffs, Shanika Brown ("Brown") and
Juanita Reid ("Reid"), filed a claim with Safepoint
for water damage. Brown and Reid commenced litigation to
recover damages for the alleged loss. On May 11, 2017,
Safepoint served separate proposals for settlement
("Proposals") upon both Brown and Reid, offering
each $2, 500.00. If either plaintiff 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. In relevant
part, Safepoint's Proposals read:
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
received an identical Proposal but requiring indemnification
September 27, 2017, the trial court granted summary judgment
in favor of Safepoint. Safepoint then filed a motion to
recover attorneys' fees and costs to enforce its
Proposals. After a hearing on the indemnification provision,
the trial court entered its Order denying Safepoint's
Motion for Fees, concluding that the Proposals "are, at
a minimum ambiguous, and violate the differentiation
requirement under Florida Rule of Civil Procedure
the issue in this appeal is whether the proposal for
settlement complies with rule 1.442(c)(3) and section 768.79,
we review the trial court's denial of the plaintiff's
motion for attorney's fees and costs de
novo." Oasis v. Espinoza, 954 So.2d 632,
634 (Fla. 3d DCA 2007) (citing Papouras v. BellSouth
Telecomms., Inc., 940 So.2d 479, 480 (Fla. 4th DCA
1.442 must be strictly construed. See Audiffred v.
Arnold, 161 So.3d 1274, 1277 (Fla. 2015) (citing
Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849
So.2d 276, 278 (Fla. 2003)). Rule 1.442(c)(3) requires that a
joint proposal for settlement "state the amount and
terms attributable to each party." Further, rule
1.442(c)(2) requires proposals to be stated with
particularity. "If ambiguity within the proposal could
reasonably affect the offeree's decision, the proposal
will not satisfy the particularity requirement."
State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d
1067, 1079 (Fla. 2006). In addition, section 768.79 requires
courts to weigh "the amount of the offer" against
"the judgment obtained." § 768.79(6)(b), Fla.
settlement proposal for fees and costs requires both parties
to mutually agree and prevents either party from individually
accepting the proposal, the proposal is invalid under section
768.79 and rule 1.442. See Attorneys' Title Ins.
Fund, Inc. v. Gorka, 36 So.3d 646, 651 (Fla. 2010). In
Gorka, 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." Id. The Florida
Supreme Court reasoned that if a proposal requires mutual
agreement and only one party agrees, he or she is ...