Arbitration & Mediation

First DCA Opinion on Proposal for Settlement Language Continues to Muddy the Waters

By Christopher B. Hopkins, Esq.

Proposals for Settlement are tricky little creatures. Designed to create a simple method to trigger settlement, the Proposal is mired in various procedural requirements for monetary and non-monetary terms and is a slave to both a Rule of Civil Procedure and a Florida Statute. Plus, they're strictly construed. So much for encouraging settlement!

In James Clements v. Bobby B. and Maudeanna Rose, the Plaintiff was bitten by the Defendants dog, sued, served a joint proposal for settlement ($75k total, half from each defendant husband and wife), and then won $120k at trial. Upon seeking to enforce the Proposal, the trial court denied claiming it was ambiguous. The question posed was whether the Proposal required both defendants to agree or whether only one could accept.

According to the majority of the Panel (Thomas and Benton), the paragraph offering settlement for $75k and then delineating that it was split equally between the husband and wife was sufficiently clear and definite that the intent was that both defendants had to accept.

The dissent, meanwhile (Davis), felt that the true controversy on appeal was the preceding paragraph in the Proposal which required execution of a release. Said release was broad enough to include any and all claims that arose as a result of the subject incident as set forth in the lawsuit. There have been a line of cases suggesting the Proposing party should either (a) attach a release or (b) set out the exact language.

Odd, isn't it, that the panel judges couldn't agree what the appeal was about?

Takeaway lesson: when serving a joint proposal, include a sentence saying all receiving defendants must accept and pay their respective portions. Also, a best (or at least better) practice is to not ask for execution of a release. It provides too much ammunition to the other side to escape a strictly construed document.

Full post as published by Florida Arbitration Law on May 20, 2008 (boomark / email).