Jeffrey P. Gale, P.A. // Striking the Florida Proposal for Settlement/Offer of Judgment

scales-of-justice-300x203Forty plus years of misleading Big Business propaganda has left the American public with the false impression that bringing a personal injury lawsuit comes without risk to the plaintiff. People have come to believe, sometimes with righteous indignation, that most lawsuits are frivolous and result in the recovery of undeserved compensation without any negative consequences for falling short of the mark.

The truth tells a different story.

From defense attorneys to trial judges to deeply cynical juries to courts of appeal and rules and statutes, Plaintiffs seeking their day in court with the simple aim of being made whole for being wronged face a host of hazards and hurdles enough to challenge the courage, strength, and fortitude of the toughest among us.

The deadliest of the pitfalls may be the Offer of Judgment (Sec. 768.79 Florida Statutes)/Proposals for Settlement (FRCP 1.442). FRCP 1.442 is the procedural vehicle for applying the substantive consequences of 768.79. In pertinent part, 768.79(1) provides as follows:

(1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award.

What this means is that a defendant may be awarded a significant sum of money against a plaintiff in a civil action for damages. Let’s say the defendant makes an offer of judgment for $100,000 and the plaintiff’s final judgment (which is not the same thing as a verdict) totals $70,000, the defendant’s attorney’s fees and costs incurred from the time the offer was made will be subtracted from the plaintiff’s final judgment [because the FJ is more than 25% less than the offer]. Even in a simple personal injury case involving a minimum of medical experts, a defendant’s attorney’s fees and costs can easily total $50,000 to $75,000. If $75,000 is subtracted from our $70,000 final judgment example, the plaintiff will owe the defendant $5,000. And if the judgment is one of no liability, meaning that a jury has found entirely in favor of the defendant, the plaintiff will owe the defendant, using our example above, $50,000 to $75,000.

Since a favorable jury result can never be guaranteed, the offer of judgment is always a frightening proposition. It is either accept or beat the offer or suffer the consequences.

Recently, insurance has become available to plaintiffs to cover offer of judgment losses. Given the coverage afforded, the premium is relatively reasonable. While this insurance does provide a level of relief, it does not eliminate all of the worry. The leading Florida company providing this coverage is LegalFeeGuard.

The case law on what constitutes a valid offer of judgment is always in flux and beyond the scope of this blog. One of the ways, however, to attack an offer of judgment is by arguing through a Motion to Strike that the offer does not bear a reasonable relationship to the amount of damages suffered or a realistic assessment of liability.

One of the leading cases on this approach is Eagleman v. Eagleman, 673 So.2d 946 (Fla. 4th DCA 1996). It is the approach we are pursuing in one of our current cases. Even though our client’s injuries are catastrophic and the question of fault between two defendants remains contested, one of the defendants recently made a $1,000 offer of judgment to our client. After laying out the facts, I conclude our Motion as follows:

Plaintiff’s injuries are severe and permanent, while her past medical expenses and lost wages alone exceed $250,000. In addition, given the different accounts of fault presented by Defendant Smith and Defendant Jones [their names have been changed for this blog], there is every reasonable reason to believe that a jury could apportion a sizeable portion of fault against Defendant Smith. Under these circumstances, Defendant Smith’s $1,000 proposal for settlement does not bear a reasonable relationship to the amount of damages suffered or represent a realistic assessment of liability.

It is case specific as to when the Motion should be filed to be effective. In our case, because liability will continue to be an issue until the case is settled or put before a jury and the damages will not be changing, the Motion is probably appropriate at any time.

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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.