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FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 46

NOVEMBER 22, 2024

TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR DEFENDANT BASED ON THE COURT’S DETERMINATION THAT PLAINTIFF’S CHANGES TO THE DEFENDANT’S PROPOSED RELEASE HAD INVALIDATED THE PARTIES’ SETTLEMENT

Mota v. USAA Ins Co, 49 Fla L Weekly D2199 (Fla. 2nd DCA Nov 6, 2024):

The plaintiff and USAA agreed to settle her claim for $100,000 arising out of an automobile accident.

Thereafter, USAA sent the plaintiff a cover letter, a proposed release, and a $100,000 check. The letter stated that the proposed release was not a condition of the settlement, was not intended to constitute a counteroffer, and that the language of the proposed release could be changed to make it mutually acceptable.

The plaintiff responded by adding language to the proposed release that waived USAA’s indemnification and subrogation rights.

USAA rejected the modification and stopped payment on the check. The plaintiff then filed a fifth amended complaint alleging breach of the settlement agreement by USAA, leading to the parties filing competing motions for summary judgment. The trial court granted USAA’s motion for summary judgment.

The appellate court reversed. It noted that USAA’s letter to the plaintiff clearly stated that the proposed release was not a condition of settlement and was not intended to constitute a counteroffer. Because USAA had not made subrogation and indemnification rights essential terms of the settlement agreement, its omission carried consequences, rending the settlement enforceable without those terms.

COURT UPHOLDS DIRECTED VERDICT ENTERED AGAINST INSURANCE COMPANY FOR ITS BAD FAITH

Safeco Ins.Co of Illinois v. Heika, 49 Fla L Weekly D2209 (Fla. 4th DCA Nov 6, 2024):

A Safeco insured had a $25,000 liability policy. The insured rear-ended the motorcycle on which the plaintiff was riding. The insured was charged and convicted of both driving under the influence of alcohol and leaving the scene of the accident.

Safeco tendered the $25,000. However, the plaintiff’s counsel advised that the plaintiff was unwilling to waive her punitive damages claim or any potential claim she might make under the dram shop law.

The testimony at the bad faith trial was that the adjuster agreed to the changes in the release. Safeco testified that it never received the modified release. Ultimately, believing he had sent the release, plaintiff’s counsel cashed the check for the client without his client actually having signed the release.

Safeco then moved to enforce the settlement. The plaintiff responded to that motion, arguing that if the amended release had not been accepted by Safeco, the plaintiff would file a bad faith claim against it. Safeco still refused.

The trial court denied the motion to enforce the settlement, trying the case on the bad faith claim. The trial court then directed a verdict in favor of the plaintiff, finding Safeco had acted in bad faith in light of all of the evidence about the discussions regarding the preservation of punitive damages and the dram shop claims.

The case then went to trial on compensatory damages. The jury awarded the plaintiff approximately $1.6 million in compensatory damages, with nothing awarded for punitive damages.

On appeal, the Fourth District upheld the granting of the directed verdict. At the same time, it found that the trial court should have granted the defendant’s motion to disqualify it (another issue in the case because the trial judge had become very involved in the questioning of witnesses in a manner favorable to the plaintiff). It then ruled that the successor judge could rule on attorney’s fees and costs and other post-trial issues.

IN AN ACTION DISMISSED AFTER THE PERSONAL REPRESENTATIVE FAILED TO TIMELY FILE A MOTION FOR SUBSTITUTION FOLLOWING THE PLAINTIFF’S DEATH, IT WAS ERROR FOR THE TRIAL COURT TO DENY THE DEFENDANT’S MOTION FOR ATTORNEYS’ FEES BASED ON A PROPOSAL FOR SETTLEMENT WHERE IT FOUND THAT THE DECEASED’S CLAIMS HAD BEEN DISMISSED “WITHOUT” PREJUDICE

Creative Hardscapes LLC v. Prawdzik, 49 Fla L Weekly D2242 (Fla. 6th DCA Nov 8, 2024):

The plaintiff sued the defendant to recover damages from a trip and fall. Both defendants were engaged in a pool and patio construction project in the backyard of the residence of the decedent’s daughter at the time of his injury. One of the defendants filed a proposal for settlement seeking to resolve all claims for $75,000.

The plaintiff did not accept the offer, and subsequently counsel for the plaintiff filed a suggestion of death indicating that the plaintiff had passed away two months after the time for acceptance of the proposal expired.

Five months later, the plaintiff sought to substitute a personal representative. The defendants moved to dismiss the case with prejudice pointing out that Rule 1.260 requires a motion for substitution be filed within 90 days of the filing of a suggestion of death. Because the plaintiff’s motion came 25 days late, the rule required dismissal of the action. The trial court then entered an order dismissing the action without prejudice.

The defendant sought to convert that dismissal to one with prejudice, noting that the plaintiff had refiled the suit under a new case number in her representative capacity, and had asserted the same causes of action against the two defendants. After conducting a hearing without using the words “with prejudice”, the trial court entered an order finding that the time to file an amended complaint had passed and that the plaintiff effectively abandoned the case which meant the dismissal was final. The court announced it would reserve jurisdiction to entertain a motion for attorney’s fees.

The defendant then timely filed a motion for attorney’s fees based on the proposal for settlement. The trial court denied that motion without any explanation. Both parties argued on appeal that the case turned on whether the order of dismissal was entered with or without prejudice as a factor determining whether the proposal for settlement would entitle the defendant to attorney’s fees. After analyzing the dismissal rules, the appellate court concluded that the second dismissal was with prejudice, even if it had not specifically stated as such. The court ruled there was no basis for the trial court not to award the defendant fees.

The plaintiff then argued that the defendant’s failure to provide the court with a transcript of the hearing on the motion for attorney’s fees was fatal to the appeal. While the lack of a transcript is often fatal if the court cannot determine what issues were raised or argued, where there is a hearing that is non-evidentiary and consists only of legal argument, the failure to provide a transcript is not necessarily fatal to appellate review. Because the proposal was included in the record on appeal and the plaintiff conceded that it was served properly and timely, the defendant was entitled to fees.