Plaintiff sought tort Damages against the Defendant (Personal Representative) arising from a motor vehicle accident that occurred in St. John’s County, Florida. The Defendant served a Proposal for Settlement on the Plaintiff for $12,000.00 matter containing the following conditions:

a.     Plaintiff CEDRIC TYSON shall execute a full and complete release as to all claims against Defendant JANICE E. WALLEN, as Personal Representative of the Estate of Decedent John Lundgren. (A release that is approved by Defendant is attached to this proposal for settlement. Defendant is willing to consider any suggested changes to the release.);

b.   Plaintiff CEDRIC TYSON shall stipulate to the entry of a voluntary dismissal with prejudice of all claims against JANICE E. WALLEN, as Personal Representative of the Estate of Decedent John Lundgren in the above-captioned lawsuit arising from the incident that occurred on or about September 20, 2010;

c.    This Proposal includes all attorneys’ fees, taxable costs, and liens, if any, connected with Plaintiff’s claims and allegations.

Defendant attached a release that expressly released the Defendant from any and all claims and damages for wrongful death and attorney’s fees.  Plaintiff did not respond to the Proposal, and the jury returned a $13,000.00 verdict that was reduced to $3,766.85 as a function of payments from Plaintiff’s insurer.  Since the Judgment obtained by th    e Plaintiff was at least 25 percent less than the offer, Defendant sought to recover attorney’s fees and costs pursuant to Defendant’s Proposal for Settlement.

The trial court initially found the proposal was not ambiguous, but reversed itself finding that  attaching the release with the language that Defendant would consider suggested changes, Plaintiff  would not “clearly know” what he was releasing.  The trial court struck the Proposal, and Defendant appealed.

The Fifth District reversed finding “no precedent sufficient to discourage a proposing party from offering to negotiate the terms of a proposed settlement or release.” The Fifth District distinguished cases wherein a Proposal was found ambiguous for not attaching the release, or when the release would extinguish the non-proposing parties’ right against third parties.  The appellate court noted the release at issue limited claims against Defendant only arising out of the tort at issue in the case.

 

The full opinion may be found at: http://www.5dca.org/Opinions/Opin2015/083115/5D14-1564.op.pdf