NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
GLENN MILEY and KYLE MILEY, )
)
Appellants, )
)
v. ) Case No. 2D14-930
)
MARTHA NASH, )
)
Appellee. )
)
Opinion filed April 29, 2015.
Appeal from the Circuit Court for Manatee
County; Diana L. Moreland, Judge.
Dorothy Venable DiFiore of Haas, Lewis,
DiFiore P.A., Tampa, for Appellants.
Derek A. Reams of Leonard A. McCue
& Associates, P.A., Bradenton, for
Appellee.
CRENSHAW, Judge.
In this appeal we review an order denying a motion for entitlement to
attorney's fees and costs pursuant to a proposal for settlement, which the trial court
found failed to strictly comply with section 768.79, Florida Statutes (2013), and Florida
Rule of Civil Procedure 1.442 (2013). Because the trial court erred in finding the
proposal for settlement legally insufficient, we reverse the order and remand to the trial
court to determine the amount of costs and attorney's fees.
This case arose from a car accident in which Kyle Miley, driving a vehicle
owned by Glenn Miley, collided with a vehicle driven by Martha Nash. In a two-count
complaint, Martha Nash sued for bodily injury damages in count one, while her
husband, Garfield Nash, sued for loss of consortium in count two. The Mileys admitted
fault and vicarious liability but eventually proceeded to a jury trial as to the issues of
causation of injury and damages. During the pretrial phase of the case Kyle Miley made
a proposal for settlement to Martha Nash, offering to pay the sum of $58,590 in "an
attempt to resolve all claims and causes of action resulting from the incident or accident
giving rise to this lawsuit brought by Plaintiff Martha Nash against Defendant Kyle
Miley." The proposal required that Martha Nash dismiss both Glenn and Kyle Miley
from the lawsuit in exchange for the payment from Kyle Miley and that the parties each
pay their own attorney's fees and costs. The proposal did not mention Garfield Nash or
his then-pending loss of consortium claim; Mr. Nash ultimately dropped his claim prior to
trial. Martha Nash rejected the proposal and the case proceeded to trial, resulting in a
jury verdict in her favor in the amount of $17,955 as damages for past medical
expenses incurred as a result of the crash. The trial court then denied a motion seeking
attorney's fees and costs under section 768.79. In so ruling, the trial court determined
that the proposal for settlement was deficient for (1) "fail[ing] to specifically identify the
claim or claims the proposal is attempting to resolve," (2) "fail[ing] to specifically address
the pending loss of consortium claim," (3) "fail[ing] to state with particularity any relevant
conditions," (4) "fail[ing] to specifically state the amount and terms of the proposal
-2-
attributable to each party," and (5) "requir[ing] dismissal of Defendants Kyle Miley and
Glenn Miley without designating the amount attributable to each Defendant." We
address each of these findings in turn.
The proposal sufficiently identified the claims to be resolved. Florida Rule
of Civil Procedure 1.442(c)(2)(B), requires that a proposal must "identify the claim or
claims the proposal is attempting to resolve." The language of the proposal clearly
announced that it was targeted to address any and "all claims and causes of action
resulting from the incident or accident giving rise to th[e] lawsuit brought by Plaintiff
Martha Nash against Defendant Kyle Miley." Thus, the proposal was only meant to
resolve the bodily injury claims brought by Martha Nash in count one and not the loss of
consortium claim brought by Garfield Nash in count two. Courts have found such
general statements regarding the claims to be resolved in proposals to be sufficient
under the rule. See, e.g., D.A.B. Constructors, Inc. v. Oliver,
914 So. 2d 462, 463 (Fla.
5th DCA 2005) (finding the joint proposal deficient for failing to apportion amounts but
noting the proposal to "settle all claims raised in the action" was otherwise compliant
with rule 1.442); Bd. of Trs. of Fla. Atl. Univ. v. Bowman,
853 So. 2d 507, 508 (Fla. 4th
DCA 2003) (finding the language "[a]ny and all claims which were raised or could have
been raised in this action by any party against any other party," to be unambiguous).
Indeed, this court has explained that "[w]hen the proposal indicates that it seeks to
resolve all claims identified in the complaint, or in a specific count, it is unnecessary to
identify the various elements of damages in the settlement proposal." Lucas v.
Calhoun,
813 So. 2d 971, 972 n.1 (Fla. 2d DCA 2002). The use of the phrases "all
claims" and "giving rise to th[e] lawsuit" is appropriate because, although Martha Nash
-3-
brought only one "count" in the complaint, within that count she specifically sought
damages including
bodily injury and resulting pain and suffering, disability,
disfigurement, mental anguish, loss of capacity for the
enjoyment of life, expense of hospitalization in the past
and/or future, medical and nursing care and treatment in the
past and/or future, past lost wages, loss of future earning
capabilities to earn money and/or aggravation of a previously
existing condition.
While it may have been more specific to refer directly to the language
used in the complaint in identifying the claims the proposal is attempting to resolve, the
language used by Kyle Miley in the proposal did not contain a level of ambiguity that
would render Martha Nash unable to "make an informed decision without needing
clarification." State Farm Mut. Auto. Ins. Co. v. Nichols,
932 So. 2d 1067, 1079 (Fla.
2006) ("[G]iven the nature of language, it may be impossible to eliminate all
ambiguity."). We distinguish the proposal in this case from the proposal addressed in
Nichols, which the supreme court found to be "too ambiguous to satisfy rule 1.442." Id.
In Nichols, the proposal stated it would settle "any and all of Nichols's claims and
causes of action in, or arising out of, the above-styled case."
Id. Importantly,
[a]t the time of the offer, Nichols not only had a pending PIP
claim against State Farm, but also a UM claim arising from
the same accident and of greater value. Although that claim
was not technically "in . . . the above-styled case," it could
have been viewed as a claim "arising out of . . . the above-
styled case," because it arose from the same set of facts.
Id. The supreme court explained that under these facts, the proposal was ambiguous
because it failed to "clarify which of [the] offeree's outstanding claims against the offeror
will be extinguished by any proposed release."
Id. at 1080. Unlike in Nichols, Martha
Nash had no other pending claims at the time of the proposal. Nothing in Kyle Miley's
-4-
proposal could be read to extinguish any claims besides those relating to the lawsuit
brought by Martha Nash. Accordingly, there is no ambiguity in this portion of the
proposal that could reasonably affect Martha Nash's decision to accept or reject the
proposal.
The proposal did not need to address Garfield Nash's separate loss of
consortium claim. As explained above, the rule requires that a proposal identify the
claims it is "attempting to resolve," not every claim related to the suit brought by either
plaintiff. Although the loss of consortium claim was pending against the Mileys at the
time of the proposal, that claim was not affected by the proposal for settlement because
it was Garfield Nash's separate and distinct claim, despite its derivative nature. See
United Servs. Auto. Ass'n v. Behar,
752 So. 2d 663, 665 (Fla. 2d DCA 2000) ("Although
Mrs. Behar's [loss of consortium] claim is derivative, it is her cause of action, not Dr.
Behar's and not their joint claim."). Garfield Nash was still free to pursue his loss of
consortium claim even if Martha Nash accepted the proposal because it would only
dismiss her claims; the proposal required no action or input on the part of Garfield Nash
whatsoever because his cause of action was his own. Cf. Blanton v. Godwin, 98 So. 3d
609, 611 (Fla. 2d DCA 2012) (considering a proposal for settlement made by plaintiff
who brought only a loss of consortium claim against one defendant resulting from his
coplaintiff-wife's injury to be its own separate proposal). Because the proposal explicitly
stated that it was to cover all claims brought by Martha Nash, it was not deficient for
failing to address the other pending claim in the lawsuit brought entirely by a different
plaintiff. This reasoning is consistent with the supreme court's statement in Nichols that
"settlement proposals must clarify which of an offeree's outstanding claims against the
-5-
offeror will be extinguished by any proposed
release." 932 So. 2d at 1080. Because
Garfield Nash was not an offeree under the proposal, there was no need to address his
claim. Accordingly, the failure to mention the loss of consortium claim did not render the
proposal defective.
Next, the proposal did not fail to meet the particularity requirement under
the statute and the rule. The relevant conditions of the proposal were included and
sufficiently described: the exact amount Kyle Miley would pay; the exact claims the
proposal would resolve; the exact action to be taken by Martha Nash, namely dismissal;
the condition that each party would pay its own attorney's fees; and the additional
condition that Glenn Miley would also be dismissed from the suit, as to Martha Nash.
The wording of these conditions does not create any ambiguity as to what the effect of
accepting the proposal will be. See Carey-All Transp., Inc. v. Newby,
989 So. 2d 1201,
1206 (Fla. 2d DCA 2008) ("[P]arties should not 'nit-pick' the validity of a proposal for
settlement based on allegations of ambiguity unless the asserted ambiguity could
'reasonably affect the offeree's decision' on whether to accept the proposal for
settlement." (quoting Nichols, 932 So. 2d at 1079)). If accepted, Kyle Miley's proposal
would be "capable of execution without the need for judicial interpretation."
Lucas, 813
So. 2d at 973. In Lucas, this court found a proposal deficient under the rule because it
"failed to indicate whether the claims would be resolved by a release (full or partial), a
dismissal, or any other means."
Id. Here, unlike Lucas, Kyle Miley specifically
requested Martha Nash's claims be resolved by dismissal in exchange for an explicit
monetary amount. Accordingly, the terms of the proposal satisfy the particularity
requirement.
-6-
In finding that the proposal failed to state the amount and terms
attributable to each party because it required dismissal of both defendants, the trial
court erred in characterizing the proposal as a joint proposal. Rule 1.442(c)(3) provides
that "[a] joint proposal shall state the amount and terms attributable to each party." The
plain language of the proposal showed that it was being made solely by Kyle Miley to
Martha Nash. Simply because the proposal required Mrs. Nash to release both Kyle
and Glenn Miley did not render the proposal a joint one. See Carey-All
Transport, 989
So. 2d at 1203; Andrews v. Frey,
66 So. 3d 376, 378 (Fla. 5th DCA 2011) ("The fact that
the proposals conditioned acceptance on releasing Rudolph Frey neither created an
ambiguity, nor transformed them into joint offers."). There was only one offeror, Kyle
Miley, and one offeree, Martha Nash; the proposal required no action or input from
either Glenn Miley or Garfield Nash. Cf. Arnold v. Audiffred, 98 So. 3d 746, 748-49 (Fla.
1st DCA 2012) (explaining that a proposal purporting to be from a single plaintiff was
actually a joint proposal because it required the nonoffering plaintiffs to dismiss their
claims upon the defendant's acceptance of the offer). Requiring dismissal of Glenn
Miley by Martha Nash did not render the proposal joint or invalidate it in any other way;
it was merely a condition attached to acceptance of the offer. Because the proposal
was not a joint proposal, no apportionment of monetary amounts was necessary.
Accordingly, the order denying the motion for costs and attorney's fees
pursuant to section 768.79 is reversed and the case remanded to the trial court for
further proceedings consistent with this opinion.
Reversed and remanded.
VILLANTI, C.J., and KELLY, J., Concur.
-7-
