Comment on proposals for settlement.

This letter replies to Jeffrey B. Crockett's article, "Statutory Offers of Settlement in Florida Practice," in the March Bar Journal. Mr. Crockett's article, in footnote 34, cites an earlier work on the same subject by Julia Luyster, "Drafting and Analyzing Joint Proposals for Settlement" (January).

Concurrent "Identical Offers"--The article recommends service of concurrent separate but identical offers containing a nonmonetary condition that only one offer can be accepted. What if both offerees attempted to accept their separate offers and the court held that both offerees could accept each offer, striking or severing the unenforceable condition of approval by a nonparty to the offer? The offeror would then be required to settle the claim for almost double its evaluated exposure. The below signed authors do not believe that this was what the Supreme Court intended in Lamb v. Matetzschk, 906 So. 2d 1037 (Fla. 2005) (Pariente, C.J., concurring specially) (Anstead and Lewis, J.J., concurring in part).

Costs and fees or no costs and fees--The article asserts that Florida law is unclear whether an offer of judgment "exclusive of costs and fees" is valid and enforceable and as such raises an interesting discussion in part. But the article failed to realize that the cases cited by the author never discussed the 1997 version of Fla. R. 1.442 and F. S. [section] 768.79, each of which should be examined separately and carefully. The present version of Rule 1.442(c)(2)(F) states that a proposal shall state whether it includes fees and whether attorney fees are part of the legal claim. A proposal exclusive of fees is permissible under the present rule. Segui v. Margill, 864 So. 2d 518 (Fla. 5th DCA 2004).

As for the treatment of costs and fees in drafting a proposal for settlement, this was answered in part in White v. Steak and Ale of Florida, Inc., 816 So. 2d 546, 551 (Fla. 2002), and was examined in Amador v. Walker, 862 So. 2d 729 (Fla. 5th DCA 2003). In White the Florida Supreme Court held that a victim's pre-offer taxable costs were included in determining what constitutes the "judgment obtained" as that term is utilized in F. S. [section] 768.79(6)(b). Where applicable, the judgment obtained includes attorney fees up to the date of the offer. Perez v. Circuit City Stores, Inc., 721 So. 2d 409 (Fla. 3d DCA 1998), approved by White, held that a plaintiff's pre-demand costs were included in the judgment for purposes of determining whether the demand was 25 percent greater than the judgment obtained. Amador affirmed that only pre-demand, not post-demand costs were Letters (continued from page 4)

included in the judgment obtained figure for purposes of calculating whether a party beat a proposal for settlement for purposes of recovering fees and costs. Segui held that an offer was not 25 percent greater than the judgment because the judgment would have been exclusive of attorney fees at the time of the offer since fees were only recoverable pursuant to the offer and not a contract or statute.

JULIA LUYSTER, West Palm Beach

JUDGE JAMES C. HAUSER, Orlando