Florida Supreme Court Strengthens use of Proposals for Settlement by Plaintiffs Seeking Attorney Fees Against Defendants with Joint and Several Liability

November 3, 2016

Anderson v. Hilton Hotels Corp., Case No. SC15—124, 2016 WL 6538663 (Fla. Nov. 3, 2016).

Significance

The Florida Supreme Court today strengthened a plaintiff’s ability to use a proposal for settlement as a vehicle for recovering attorney fees when suing multiple defendants on a theory of joint and several liability. In an opinion by Justice Lewis, the court held that the determination of whether the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer (as required to recover attorney fees based on a proposal for settlement), shall be made by the trial court by comparing the amount of the total judgment entered against all jointly liable defendants with the amount of the plaintiff’s proposal for settlement to the individual defendant. 

Background

This case arose out of an armed robbery, carjacking, and shooting incident that occurred in the parking lot of an Embassy Suites hotel in Orlando. The victim, Troy Anderson, filed an action against Hilton Hotels Corporation (“Hilton”), W2007 Equity Inns Realty, LLC (“W2007”), Interstate Management Company, LLC (“Interstate”), and SecurAmerica, LLC (“SecurAmerica”) for negligence. Hilton was the parent company of the Embassy Suites franchise. W2007 was an investment fund owned by the Embassy Suites hotel where the incident occurred. Interstate was the management company that oversaw daily operations of the hotel and hired SecurAmerica to provide security services for the hotel. Anderson’s wife also sought damages from the defendants for loss of consortium. 

In October 2011, Anderson served separate proposals for settlement to Hilton, W2007, and Interstate, pursuant to Rule 1.442 of the Florida Rules of Civil Procedure and section 768.79, Florida Statutes (2011). Anderson offered to settle his claims with Hilton for $650,000, W2007 for $100,000, and Interstate for $650,000. In March 2012, Anderson served a proposal for settlement to SecurAmerica, offering to settle his claims against SecurAmerica for $300,000. Each of the four separate proposals for settlement expressly stated that the proposal was made by “PLAINTIFF” (defined as “Troy Anderson”) against the defendant named in the proposal and did not address the separate pending claims of the other parties to the litigation.

The matter proceeded to trial. Attorneys from a single law firm represented Hilton, W2007, and Interstate, while attorneys from a separate law firm represented SecurAmerica. Throughout the trial, Hilton, W2007, and Interstate were collectively referred to as “Embassy Suites,” even though “Embassy Suites” was not specifically named as a party in the lawsuit. When discussing jury instructions, Anderson’s counsel agreed to refer to Hilton, W2007, and Interstate collectively as “Embassy Suites” without further instructing the jury on agency or vicarious liability. 

The jury found “Embassy Suites” and SecurAmerica to be negligent for Anderson’s injuries and that Anderson was not comparatively negligent. The jury found that “Embassy Suites” was 72 percent negligent, and SecurAmerica was 28 percent negligent. The jury found that Anderson sustained a total of $1,702,066 in damages. The trial court entered judgment in favor of Anderson against Hilton, W2007, and Interstate in the amount of $1,225,487.52, and against SecurAmerica in the amount of $476,578.48. 

Anderson then sought attorneys’ fees pursuant to section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442. The trial court denied Anderson’s motion, finding that Anderson failed to request a verdict assigning separate findings of fault among Hilton, W2007, and Interstate. Anderson appealed the trial court’s denial of attorneys’ fees. The Fifth District affirmed, concluding that Anderson’s separate proposals to Hilton, W2007, and Interstate were unenforceable because Anderson requested to have the three entities treated as one by the jury and the judgment obtained against the “Embassy Suites” defendants was less than the sum of the proposals for settlement made against them. The Fifth District also held that the term “plaintiff” in the proposals for settlement could reasonably be interpreted to include both Anderson and his wife, Paula, who at the time of the proposals was asserting a loss of consortium claim. (Paula voluntarily dismissed her cause of action without prejudice prior to trial.)

Issue

The key issue addressed by the court was whether plaintiff’s individual proposals for settlement against three jointly and severally liable defendants (Hilton, W2007, and Interstate) may be compared to the unapportioned final judgment entered against those three defendants in determining whether the plaintiff has recovered “a judgment in an amount at least 25 percent greater than the offer,” pursuant to section 768.79, Florida Statutes (2011). A second issue addressed by the court was whether the proposals for settlement were ambiguous when each proposal for settlement was made by “plaintiff” against each separate defendant and did not address the separate pending claims of the other parties to the litigation. 

Holding

The court held that the determination of whether the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer (as required to recover attorney fees based on a proposal for settlement), shall be made by the trial court by comparing the amount of the total unapportioned final judgment entered against all jointly liable defendants with the amount of the plaintiff’s proposal for settlement to the individual defendant. Here, each of Anderson’s proposals for settlement to the three jointly liable parties (Hilton, W2007, and Interstate) created a right to attorney fees under section 768.79 and Rule 1.442, because the amount of the total judgment against those parties ($1,225,487.52) was more than 25 percent greater than the amount of each of the individual offers made to those defendants. Anderson’s proposal for settlement to SecurAmerica also created a right to attorney fees upon the entry of a judgment against SecurAmerica in an amount that was more than 25 percent greater than the amount of the proposal for settlement made to SecurAmerica. 

Additionally, the court held that the proposals for settlement were not ambiguous, because each proposal was expressly made by “PLAINTIFF,” which was defined as Troy Anderson in each proposal, and expressly indicated that each proposal was designed to settle “any and all claims made in this cause by PLAINTIFF” against the specific defendant named in each proposal. 

Analysis

In reaching its decision, the court explained that the offer of judgment statute creates an entitlement to attorneys’ fees when the statutory and procedural requirements have been satisfied. The court stated that this entitlement to attorneys’ fees hinges on the “judgment obtained,” and not the verdict form returned by the jury. Section 768.79(6) defines “judgment obtained” by a plaintiff as “the amount of the net judgment entered, plus any postoffer settlement amounts by which the verdict was reduced”). The court explained that neither section 768.79 nor Rule 1.442 specifies that a plaintiff must obtain a judgment from a designated party to be entitled to attorneys’ fees. The court stated that this entitlement is “only dependent upon a sufficient offer and judgment obtained, not a judgment ‘obtained from designated offees.’” 

Thus, Anderson’s offers to Hilton, W2007, and Interstate complied with the requirements of section 768.79 and Rule 1.442. Upon obtaining a total judgment against those defendants that were at least 25 percent greater than any one of the offers made to Hilton, W2007, and Interstate, Anderson became entitled to attorneys’ fees. 

Moreover, in holding that the proposals for settlement were not ambiguous, the court explained that each proposal set forth clear terms expressly stating that the only parties to be affected by the acceptance of the proposal would be Troy Anderson and the designated defendant. The court stated that Anderson was not obligated to address or refer to the loss of consortium claim asserted by Anderson’s spouse.

Please contact Brian Webb with questions.