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Too Early…..PFS Found to Violate Fla.R.Civ.p. 1.442(B)

The insurer was awarded fees and costs in a first party property case subsequent to verdict in favor of the Defendant insurer arising from a breach of contract action. Prior to trial, Defendant insurer served each insured, individually, with a set of Proposals for Settlement. The Second District found the policyholders argument that the Proposals were made in bad faith and unreasonable “without merit.” As to one PFS, however, the Court reversed as it was found to have been served prematurely in violation of Fla.R.Civ.P. 1.442(b).

On March 19, 2016, Mr. Arizone (policyholder), filed suit for breach of contract. On August 18, 2016, an amended complaint was filed adding Mrs. Simon, ostensible policyholder, to the action. On August 29, 2016, the insurer served a proposal for settlement on Mr. Arizone in the amount of $500 and served a proposal for settlement for the same amount on Mrs. Simon. Additional proposals were served in the December 2016 (amount unknown). After verdict, the insurer moved for fees and costs based on both sets of proposals.
The trial court found the December 2016 proposals for settlement to be unenforceable. (There was no reason proffered in the opinion.) The trial court found entitlement on the earlier set of Proposals, i.e, the August 2016 proposals to each policyholder.

The Second DCA noted the time period for service of a proposal for settlement on a plaintiff following commencement of an action as set forth in rule 1.442(b):as follows:

A proposal to a defendant shall be served no earlier than 90 days after service of process on that defendant; a proposal to a plaintiff shall be served no earlier than 90 days after the action has been commenced. No proposal shall be served later than 45 days before the date set for trial or the first day of the docket on which the case is set for trial, whichever is earlier.

The policyholder (Simon) argued that the action “was commenced” as to the individual while the insurer argued that the action by definition can be commenced only when the action is filed. Citing to precedent from the 3rd and 4th DCA, the Second DCA held the critical date for determining whether the proposal for settlement served by the insurer on Mrs. Simon was timely required calculation from the date Ms. Simon commenced the breach of contract action. As Ms. Smon was not subject to the action until August 18, 2016, which is the date she was added to the action, the PFS violated the 90 day requirement of the rule.

The Court affirmed as to Mr. Arizone but not Ms. Simon.

The case may be found here: https://www.2dca.org/content/download/725600/opinion/181116_DC08_03172021_075920_i.pdf


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