The Second District Court of Appeal, in Braaksma v. Pratt, 37 Fla. L. Weekly D2577a (Fla. 2DCA 2012), had to consider the issue of whether attorney’s fees could be awarded against a Defendant who had not accepted an Offer of Judgment on the basis that the failure to accept the Offer of Judgment did not result in additional delay or costs because the Plaintiff still needed to proceed with a trial regardless if the Offer was accepted or not.
Florida Offer of Judgment
Florida Statute 768.79(1), provides for attorney’s fees when a Plaintiff files an Offer of Judgment that is not accepted and the Plaintiff obtains a judgment that is at least 25 percent greater than the offer. The award of attorney’s fees in this instance is considered a sanction against the party who rejects the offer for unnecessarily prolonging the litigation. The intent of the Offer of Judgment is to promote the resolution of cases that normally should be resolved so as to avoid unnecessary delay and expense. If a Defendant forces a Plaintiff to go all the way in a case to obtain their judgment when the case could have been settled much sooner, the Defendant will be forced to pay all the legal expenses from the time the Offer of Judgment was made.
Lack of Good Faith is the Only Consideration
In this case, the Defendant did not contest that the Plaintiff was entitled to attorney’s fees under the Florida Offer of Judgment statute. Rather, the Defendant argued that the reasonable fees should be $0.00 since the Plaintiff still had to go to a trial for the case regardless if the offer was accepted and thus no additional legal fees or costs were actually incurred. The Plaintiff was required to go to trial because a trial would be needed for an additional Defendant that was not made a similar Offer of Judgment. The trial court agreed with this argument and found that the reasonable attorney’s fees were $0.00 on these grounds. The Second District Court of Appeal reversed the trial court and held that the only discretion for not awarding attorney’s fees under the Florida Offer of Judgment Statute was if there was a finding that the offer was not made in good faith. Factors as to reasonableness have no basis to deny an attorney fee claim that was based on an otherwise valid Offer of Judgment. Since the Offer of Judgment is a creature of statute, the terms of that statute must be strictly construed and enforced. Compliance with the technical requirements of the Florida Offer of Judgment Statute creates a mandatory right to attorney’s fees.
Application to Florida Insurance Claims
Increasingly, Florida insurance companies are being aggressive with their litigation tactics by filing an early Offer of Judgment in the case. This is nothing more than an attempt to intimidate homeowners to give up on their insurance claims. By filing an Offer of Judgment in the insurance claim case, the insurance company is making an implicit and real threat to go after the homeowner for attorney’s fees and costs. Since the Offer of Judgment requires the mandatory award of attorney’s fees. the main analysis must be to determine if the Offer was in good technical form and therafter if it was made in good faith under the circumstances it was made.
Related Topics: Florida Civil Litigation; Florida Homeowner Insurance Claim
