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Pursuant to Section 768.79, Florida Statutes, a party making a reasonable proposal for judgment may recover attorney’s fees if the proposal is rejected and a qualifying judgment is recovered. 

In Coates v. R.J. Reynolds Tobacco Co., 2023 WL 4004339 (Fla. 2023), the Florida Supreme Court addressed the issue of whether a prevailing party is entitled to attorney’s fees under Florida’s offer-of-judgment statute.  There, the plaintiff sued the defendant for wrongful death and punitive damages and served two proposals for settlement upon the defendant (one for $75,000 and the second for $749,000), which were rejected.  At trial, the jury awarded plaintiff $300,000 in compensatory damages and $16 million in punitive damages.  On appeal, the Fifth District Court of Appeal reversed the punitive damages award, finding it to be excessive.  Nevertheless, plaintiff then argued she was entitled to appellate attorney’s fees based on the defendant’s rejection of the proposals for settlement pursuant to Section 768.79.  The defendant argued she was not entitled to attorney’s fees because she did not prevail in the appeal.

The Florida Supreme Court disagreed with the defendant and held that the offer of judgment statute was not a prevailing party statute.  The Court construed the plain language of Section 768.79 and explained:

the text of the offer-of-judgment statute contemplates a situation where the defendant is entitled to fees even if the plaintiff prevails on the most significant issues at trial and ultimately recovers a substantial judgment. It is not reasonable to hold that the Legislature created a prevailing-party requirement when the statute’s text allows for awards to litigants who do not prevail.

…

Had the Legislature intended for section 768.79 to be a prevailing-party statute, it could have adopted similar language to the prevailing-party statutes mentioned above; but it did not. 

The Point

A party does not have to be successful on the merits of the proceeding so long as the requirements have been of Section 768.79, Florida Statutes have been met, i.e., obtaining an award at least 25% or more (for plaintiffs) or less (for defendants) than what was offered and rejected.

For more information please contact: Forrest Andrews, Esq., Lydecker LLP’s Appellate Department Chair. Forrest Andrews, Esq. can be reach at 305-416-3180 or fla@lydecker.com.

About Lydecker

Lydecker is an AV-rated full-service law firm with over 100 attorneys and thirteen offices throughout Florida, New York, New Jersey, Pennsylvania, and in California. The Firm has earned a strong and positive reputation for its tenacious defense and protection of the best interests of its clients, and for obtaining optimal results. Our long-standing relationships with our clients are grounded in mutual trust and an understanding of each client’s needs and goals. 

Lydecker enjoys a diverse practice, and accordingly serves a number of non-insurance and insurance clients. Some of the firm’s major practice area which include Appellate Practice, Business, Government, Industry, Insurance, Litigation, and Professional Liability. For more information, please visit www.lydecker.com

In Florida, “no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” § 768.72(1), Fla. Stat. (2023); see also Fla. R. Civ. P. 1.190(f).

In Lord v. FedNat Insurance Company, 2023 WL 4139152 (Fla. 5th DCA 2023), Plaintiff’s house sustained property damage due to a lightning strike on July 9, 2017.  He reported a claim to his insurance carrier that same day.  On October 20, 2017, Plaintiff filed a civil remedy notice (“CRN”) of insurer violations against the carrier since it had not completed its investigation.  Plaintiff subsequently filed suit against the carrier alleging that it failed to implement standards for proper investigation of claims and failure to act promptly upon communications with respect to claims, in violation of Section 626.9541, Florida Statutes.  Plaintiff then sought leave to add a claim for punitive damages pursuant to Section 624.155(5)(b), Florida Statutes because the acts giving rise to the alleged violations occurred with such frequency as to indicate a general business practice and those acts were in reckless disregard of Plaintiff’s rights.

The only evidence Plaintiff relied on was deposition testimony of the carrier’s Vice President of Claims and a Field Adjuster that the carrier did not have any written guidelines relating to settling a claim after receiving a CRN, or for the adjustment of lightning strike claims.

The trial court ruled that Plaintiff failed to make a reasonable showing that the carrier’s alleged violations of Section 626.541 occurred with such frequency as to indicate a general business practice.  The trial court’s ruling was affirmed on appeal by the Fifth District Court of Appeal.

The Point

There is no bright-line rule as to how many violations constitute a “general business practice” in order to assert a punitive damages claim pursuant to Section 624.155(5)(b).  However, such evidence must consist of violations beyond an insured’s own claim.

About Lydecker

Lydecker is an AV-rated full-service law firm with over 100 attorneys and thirteen offices throughout Florida, New York, New Jersey, Pennsylvania, and in California. The Firm has earned a strong and positive reputation for its tenacious defense and protection of the best interests of its clients, and for obtaining optimal results. Our long-standing relationships with our clients are grounded in mutual trust and an understanding of each client’s needs and goals. 

Lydecker enjoys a diverse practice, and accordingly serves a number of non-insurance and insurance clients. Some of the firm’s major practice area which include Appellate Practice, Business, Government, Industry, Insurance, Litigation, and Professional Liability. For more information, please visit www.lydecker.com