Disciplined in Sophisticated Defense and Insurance Litigation

April 15, 2019 | Blog Post| Unsuccessfully Using Requests for Admissions as a Sword for Attorney's Fees

As a defense attorney practicing in the areas of auto accidents, premises liability, and products liability cases, I observe plaintiff’s counsel serving my clients with requests for admission, asking for improbable admissions.  The requests often ask my clients to admit that they were negligent in causing the accident, failed to provide sufficient security or training to prevent a criminal act against a customer or tenant, failed to take the necessary precautions to prevent a slip and fall or make a product safe, and that such negligence was a proximate cause of plaintiff’s claimed damages.  I often wonder who in their right mind would advise a client to make such an admission, especially where liability, comparative negligence and/or causation of injury remain in dispute.  By acquiescing to these types of requests for admission, my client would be admitting liability on the ultimate issues in a case, and any trial would be limited to damages.  I never hesitated about writing “denied” when I receive these requests and moving onto the next request for admission.  However, at least one trial court awarded damages to a plaintiff who served requests for admission on ultimate issues of negligence in a case (but fortunately the decision was overturned). 

In Florida, the general rule is that each party is required to pay its own attorney’s fees with limited exceptions.  Recently, Florida’s Fifth District Court of Appeal in Sentz and GEICO v. Tracy, 2019 WL 1412412 (Fla. 5th DCA 2019), reversed the award of attorney’s fees in favor of the appellant, Richard Tracy, based on appellee, Tammy Sentz’s unsuccessful denial of certain requests for admissions served in an auto accident case.  Rule 1.380(c), Florida Rules of Civil Procedure, allows a trial court to award expenses, including attorney’s fees, against a party that fails to admit a request for admission that is later found true at trial. Prior to the trial, Mr. Tracy served requests for admissions to Ms. Sentz, including asking her to admit that she “negligently and carelessly maintained, operated, and controlled her motor vehicle so that it collided with the vehicle operated” by Mr. Tracy. As one would expect, Ms. Sentz denied the requests for admission and testified that she was not at fault for the accident based on the lack of operational brake lights on Mr. Tracy’s boat trailer and his failure to travel the speed limit. The jury rejected this testimony and found that Ms. Sentz was negligent in causing the accident. Based on the jury verdict, the trial court awarded attorney’s fees under rule 1.380(c) because Ms. Sentz denied the requests for admission that she was negligent in causing the accident. 

The Fifth District Court of Appeal reversed the decision of the trial court, explaining that attorney’s fees should not be awarded if a party denies a request for admission that would resolve an ultimate issue at trial. The appellate court held that a request for admission should merely go to establishing a relevant fact in the case, not the ultimate issues. 

What would have happened if the Fifth District Court of Appeal reached the opposite conclusion?  Most likely, plaintiffs and defendants would begin serving requests for admissions to the other side requesting the other party admit or deny whether they were or were not negligent in causing or contributing to an accident, to admit the causation of the claimed injuries, and even admit to the reasonableness of treatment and the amount of the damages claimed. Attorneys receiving these requests would be in a quandary as to how to answer them. On one hand, an attorney’s client is likely telling them that they did not cause the accident and it was the fault of the other party. On the other hand, if the trial court’s ruling in Sentz was allowed to stand, attorneys would have to be cognizant about the possibility of their client owing the other side’s attorneys fees if the jury disbelieved the theory of the defense. Because requests for admission are most often served with the complaint, or shortly into litigation, each attorney would have to “bet” on the ultimate outcome of the case, well prior to fully developing the full scope of the evidence, with the exposure to a bad bet falling on the client. 

What is more, proposals for settlement would essentially become irrelevant. In Florida, if a party serves a valid proposal for a settlement and a jury awards a judgment 25% above (or below, as applicable) the amount offered in the proposal for settlement, the other party is awarded attorney’s fees incurred from the date the proposal for settlement was served.  Under the proposal for settlement rule, one cannot even be filed until 90 days after the commencement of the action. If the trial court’s holding in Sentz was allowed to stand, few strategic attorneys would serve proposals for settlement. Instead, attorneys would merely serve requests for admissions regarding the ultimate issues in a case. If the admissions were denied by the other party, but the jury found for your client, the trial court would be required to award attorney’s fees to your client. Such a result seems unfair, unjust, and contrary to Florida’s long-standing jurisprudence.

The nuances of Florida law make my job difficult enough. I count myself lucky that the Fifth District saw the error in the trial court’s decision. Now, I can go back to shaking my head in disbelief when one of my clients is served a request for admission that goes to the ultimate issue in a case.

J. Blake Hunter | SENIOR ASSOCIATE

Casualty Defense Litigation, Extra-Contractual and Third-Party Coverage

(850) 894-4111 | TALLAHASSEE

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