Case Notes

Case Note – Offers of Judgment – Clarifying Ambiguity

By: Ryan Hoyle, Esq.

Offers of Judgment, (interchangeably, Proposals for Settlement), are effective tools at securing resolution in a timely, and cost effective manner. Nevertheless, the enforcement of offers for judgment is often unreliable, with courts often finding terms of an offer ambiguous or vague. In Hilton Hotels Corp. etc., et. al. v. Troy Anderson, and Paula Anderson, 2014, WL 7191042 (Fla. 5th DCA 2014), the Fifth District Court of Appeal offered clarity on what, and how, offers involving and between multiple parties can be read as vague and ambiguous, and thus, unenforceable. Offers must be specific as to who is making to offer, and to whom the offer is made, and what, if any claims are being resolved by the offer.

Under Section 768.79, Florida Statutes[1], a Plaintiff may file a demand (offer) of judgment, that if not accepted by the Defendant within 30 days of the offer, entitles the Plaintiff to attorney’s fees from the date of offer in the event that Plaintiff recovers a judgment in an amount at least 25% greater than the demand. An offer must be in writing, state that it is being made pursuant to statute, identify the offeror and offeree, and state the total amount of the demand.   Importantly, because the Section 768.79 provides a penal sanction, a sanction that itself is contrary to the common law rule that each party be responsible for their own attorney’s fees, the statute must be strictly construed. Sarkis v. Allstate Ins. Co., 863 So. 2d 210 (Fla. 2003).

Here, in Hilton, Troy Anderson was attacked in the parking lot of an Embassy Suites hotel in Orlando.  Anderson subsequently filed claims against Hilton Hotels Corp., (Franchisor), W2007 Equity Inns Realty (Owner), Interstate Hotels & Resorts, Inc. (Manager), and SecurAmerica, LLC (Security Services).  As part of the action, Anderson’s wife, Paula Anderson, filed loss of consortium claims against each Defendant.

During litigation, Troy Anderson filed offers of judgment against each of the four named Defendants, with each offer of judgment a mirror image of the others, but specifically named to each Defendant.  Importantly, Term 3 of Anderson’s offer indicated:

This Proposal for Settlement is made for the purpose of settling any and all claims made in this cause by Plaintiff against Defendant.

Term 4 of Anderson’s offer provided:

That in exchange for ($amount) in hand paid from Defendant, Plaintiff agrees to settle any and all claims asserted against Defendant as identified in Case Number 2009-CA-040473-0, brought in the Circuit Court in and for Orange County, Florida.

None of the Defendant’s accepted Anderson’s offers. Sometime between Anderson’s offers of judgment to each Defendant and the trial of the matter, Anderson’s spouse dropped her consortium claims against each Defendant.

After a trial on the merits, the jury found each of the four Defendants liable to some degree, with no comparative liability found as to Anderson.  Given that none of the Defendants had accepted his offer, Anderson claimed entitlement to attorney’s fees under Section 768.79. The Fifth District Court of Appeal upheld the trial court’s ruling that Anderson’s offers were ambiguous, and thus unenforceable.  Specifically, the District Court observed that while Anderson’s 3rd Term reflected the offer intented to resolve only his claims, language in the 4th Term was vague and ambiguous as to whether the offer was intended to resolve just Troy Anderson’s claims, or Paula’s as well. Importantly, Paula was not dropped from the matter until after the offers were made. The Court pointed specifically to the language “any and all claims asserted against Defendant” in Term 4 as being ambiguous, given that it could reflect either Troy Anderson’s claims, or Troy’s and Paula’s.

In dicta, the Fifth DCA also noted that Anderson’s offers would have been unenforceable given the trial’s charging conference. At the conference, Anderson requested that Hilton, W2007, and Interstate all be referred to one and the same as “Embassy Suites.”  Thus, when the jury found liability, it did so against Embassy Suites and SecurAmerica only.  The Fifth DCA reasoned that Anderson’s ultimate judgment against “Embassy Suites” was less than the combined offers of judgment  made against them, and thus, would be unenforceable.


[1] As the 5th DCA notes, Section 768.79 provides the substantive law for offers of judgment, while Rule 1.442, Florida Rules of Civil Procedure provides the procedural mechanism.

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