United States: The Court of Appeal holds the right to an award of fees and costs under section 768.79.
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Few things play a more important role in litigation than attorney fees. They are as much an incentive to continue as to settle. The prospect of liability for the other party’s costs is a shadow cast by every case, whether it basks in the sun of contract, tort, or higher constitutional law.
In Safepoint Insurance Company v. Williams, 3D19-2196 (Fla. 3d DCA November 10, 2021), the Third District Court of Appeal recently responded to a new question on the right to costs under section 768.79, Florida Statutes (2019). The law allows a defendant to be paid his attorney fees despite his loss at trial, provided he serves an offer to settle that the plaintiff rejects and the plaintiff’s “judgment obtained” is ultimately 25% less than settlement amount rejected.
Williams was an ordinary insurance case, in which the insurer completely denied coverage for the insured’s water damage inside the house due to leaks, and the insured went to court to seek $ 20,449.55 in damages for breach of contract. The insurer offered to settle the case for $ 25,000.00, excluding legal fees, but the insured rejected the offer. After trial, the insured was awarded a judgment of only $ 3,566.10. Naturally, the insurer requested the allocation of legal fees in view of the difference of $ 20,000 between the offer rejected by the insured and the judgment it ultimately obtained. But the court of first instance rejected the request.
On appeal, the insured argued that the insurer’s offer was not initially valid because it did not include the exact amount of the plaintiff’s legal fees. The Third District Court of Appeal first found the offer valid under the plain language of section 768.79, as none of its restrictions require an offer to identify the exact amount of the plaintiff’s attorney fees. before it can be valid.
The Court then separately analyzed the validity of the offer under what it called “Florida’s evolving case law”, reviewing cases that have refined the interpretation of section 768.79. He relied on and adopted the “Whiteformula “(because of its name White v. Steak & Ale of Fla., Inc., 816 So. 2d 546, 550 (Fla. 2002)). The Court recognized that a court of first instance must take into account the plaintiff’s legal fees (cost before the rejected offer to settle is made) in determining the “judgment” obtained subsequently, against which the offer is to be measured to determine the 25% difference, corn a defendant no need. A defendant may choose, but not be obligated, to include the amount of these costs in their offer to settle. The Court also noted that “no Florida court has held that attorney’s fees reasonable before the plaintiff’s offer should be quantified and included in the total amount. of the proposal in order to create a valid offer of judgment. He chose not to be the first. And he set aside the trial court’s order denying the costs, referring to an appropriate decision on the reasonableness of the amount.
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