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In the Context of a Proposal for Settlement, Defendant is Entitled to Incurred Costs After the Offer was Filed while Plaintiff is Limited to Recovering Costs that were Incurred Prior to the Offer Being Made

In a personal injury matter arising from a motor vehicle crash, Defendant served Plaintiff with two proposals for settlement: one for $30,000.00 and a second one for $40,000.00. Plaintiff failed to accept either PFS, and the matter proceeded to trial wherein the jury returned a verdict awarding Plaintiff $23,249.58. Before application of costs, the Defendant’s triggering thresholds for fees and costs were $22,500.00 and $40,000.00 respectively (before applying costs).

Defendant moved for setoffs pursuant to Fla. Stat. § 768.76, Collateral Sources, as well as entitlement to taxable costs and attorney’s fees pursuant to Fla. Stat. § 768.79, Offers of Judgment. The trial court granted Defendant’s motion finding a net verdict of $12,924.47.

The “judgment obtained” pursuant to Fla. Stat. § 768.79 includes the net judgment for damages and any attorneys’ fees and taxable costs that could have been included in a final judgment if such final judgment was entered on the date of the offer.

Plaintiff also filed a Motion to Tax Costs pursuant to Fla. Stat. § 57.041, Costs- recovery from losing party. The trial Court granted Plaintiff’s motion for costs and awarded Plaintiff $28,486.59 in costs that captured costs both before and after Defendant’s served his first Proposal for Settlement. Ultimately, the trial court entered a Final Judgment in favor of Plaintiff in the amount of $11,613.63.

Defendant/Appellant sought relief in the Second District Court of Appeal. The Second DCA acknowledged that the matter focused on the “interplay” between the Fla. Stat. § 768.79 as well as Fla. Stat. § 57.041. The appellate court cited precedent that the when a defendant makes a successful offer of judgment, i.e., where a plaintiff recovers a judgment that is at least 25 percent less than what was offered by the defendant, Fla. Stat. § 768.79 controls over Fla. Stat. § 57.041. See, Dozier v. City of St. Petersburg, 702 So. 2d 593, 594 (Fla. 2d DCA 1997). Therefore, if the defendant is entitled to his incurred costs after the offer was filed, the plaintiff is limited to recovering costs that were incurred prior to the offer being made.

The Second DCA rules the trial court should have applied the correct computation and taken Plaintiff’s underlying judgment amount after applicable setoffs and added Plaintiff’s pre-offer costs. That sum would be used to determine whether it fell within the 25% threshold of Defendant’s offers of judgment. Offsetting that sum with the undisputed amount of Defendant’s post-offer attorneys’ fees and costs would have resulted in Defendant being awarded a judgment in his favor. The Trial Court, however, awarded Plaintiff all his costs incurred both prior to and after the date the PFS were filed resulting in a judgment for the Plaintiff.

The Appellate Court reversed the judgment in favor of Plaintiff as erroneous and remanded for a proper computation of the cost award that would appear to mandate entry of Judgment in favor of the underling Defendant.

Comment: The application of Plaintiff’s taxable costs into the net judgment figure may only include costs up to the date of the Defendant’s PFS. This places more emphasis on the use of PFS early in litigation as later incurred costs by Plaintiff will be disregarded.

The opinion may be found here: https://www.2dca.org/content/download/818614/opinion/203663_DC13_01052022_081642_i.pdf?utm_source=ActiveCampaign&utm_medium=email&utm_content=Reading+File%3A+Case+law+%26+top+stories&utm_campaign=Reading+File-+Week+of+1%2F07%2F22

The initial brief and answer brief are attached here:


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