The Week In Torts – Cases from October 21, 2022
Can we really separate acceptance and performance?
FLORIDA LAW WEEKLY
VOLUME 47, NUMBER 42
CASES FROM THE WEEK OCTOBER 21, 2022
FLORIDA SUPREME COURT RULES THAT “ACCEPTANCE” AND “PERFORMANCE” ARE TWO SEPARATE THINGS WHEN COURTS EVALUATE WHETHER A PARTY “ACCEPTED” A PROPOSAL FOR SETTLEMENT
Suarez Trucking v. Souders, 47 Fla. L. Weekly S263 (Fla. Oct. 20, 2022):
The plaintiff served a proposal for settlement on the defendant for $500,000. The proposal stated that it was being made pursuant to § 768.79 and Rule 1.442. It stated that the defendants would pay $500,000 to the plaintiff within 10-days of the acceptance. The proposal advised (as a condition) that the plaintiff would enter a dismissal with prejudice against the defendants.
The defendant timely filed a notice of acceptance. However, when the defendant sent the settlement check, it included the workers’ compensation carrier that held the workers’ compensation lien as a payee, along with plaintiff and his counsel.
The Second District determined that there was no settlement because of the way the defendant drafted the check.
The Florida Supreme Court criticized the Second District majority for “erroneously conflating acceptance with performance” and erring “in its understanding of what is required to manifest acceptance of an offer inviting a promissory acceptance.”
The court explained that basic contract law states that in order to create a contract, it is essential that there should be a reciprocal assent. It said that the promise made by the defendant in the filed notice of acceptance was “made absolutely and unqualifiedly,” and that the defendant agreed to make precisely the promise requested. The court noted that nothing in § 768.79 or Rule 1.442 is at odds with the basic rules of contract law regarding offer and acceptance in mutual assent.
In looking at the issue about whether a “breach” of the settlement had occurred based on the way the check was issued, the court refused. It advised that to the extent the issue on appeal was whether a breach of the settlement contract occurred, that matter exceeded the scope of the conflict issue (which focused merely on the “acceptance” and not the check issue).
The court then wrote that because the settlement offer made a clear distinction between acceptance and performance, and did not equate “acceptance” with “performance” (which it could have), it was enforceable.
In Justice Labarga’s dissent, he admonished that there was no meeting of the minds as to all the material terms of the offer, and therefore no settlement agreement was formed, because the parties were still negotiating the essential terms of the contract. He believed that the defendant’s request to include the workers’ compensation carrier on the settlement check constituted a counter offer that voided the initial offer, and the plaintiff ultimately rejected the counter offer. The majority said that the issues of breach could be addressed at a later point in the case.
ON REHEARING THE COURT FINDS THE DANGEROUS INSTRUMENTALITY DOCTRINE MAY APPLY WHEN A DRIVER WEAPONIZES A VEHICLE WITH THE INTENT TO CAUSE BODILY HARM, WHERE SUCH CONDUCT IS REASONABLY FORESEEABLE TO THE OWNER
Sager v. Blanco, 47 Fl. L. Weekly D2055 (Fla. 3rd DCA Oct. 12, 2022):
A man responded to a domestic dispute at the residence of his neighbor. The neighbor’s son drove away violently, and as he was fleeing the scene after assaulting his girlfriend, hit the plaintiff and dragged him under the car as he was fleeing from the scene.
The man sued the driver for negligence, as well as his mother who owned the car, for negligent entrustment and vicarious liability under the dangerous instrumentality doctrine. The driver was convicted of aggravated battery with a deadly weapon.
The court observed that the contours of the dangerous instrumentality doctrine have been refined, but the essential articulation of it remains the same. It is designed to provide greater financial responsibility to pay for carnage on the roads, and is premised upon the theory that one who originates the danger by entrusting an automobile to another is in the best position to make certain that there will be adequate resources to pay damages caused by negligent operation.
The court also observed that the law does not have a blanket prohibition on vicarious liability claims premised on the weaponization of the dangerous instrumentality. Instead, the basic tenant of vicarious liability is that based on the consensual entrustment of the vehicle in the hands of the driver, and there is no per se distinction between negligence, quasi-intentional conduct in evaluating that entrustment.
Considering these principles, the court found it was error to enter summary judgment because the facts involving foreseeability were sharply disputed, and it was unclear whether the driver intentionally weaponized the vehicle with the intent to cause harm, or merely acted negligently.
TRIAL JUDGE AFFIRMED FOR FINDING VERDICT AGAINST MANIFEST WEIGHT OF THE EVIDENCE AND GRANTING A NEW TRIAL.
Polynice v. Burger King Corp., 47 Fla. L. Weekly D2064 (Fla. 3rd DCA Oct. 12, 2022):
When a trial judge grants a motion for new trial based on a verdict that is against the manifest weight of the evidence, the appellate court should not disturb the ruling except upon a clear showing of abuse.
While discretion is not without limits, when issues of damages and liability are inextricably intertwined, and the trial court feels a new trial is necessary, it is hard to find an abuse of discretion, which this court did not in affirming.