Arbitration & Mediation

Fourth DCA Says Single Defendant Can Require Dismissal of Entire Suit as "Condition" to Proposal for Settlement

By Christopher B. Hopkins, Esq.

Our starting place with Proposals for Settlement has been that the courts review them warily. A trend exists that most challenged Proposals for Settlements which go up on appeal are NOT enforced. But, more recently, we suggested there may be a counter-trend, where the intermediate appellate courts seemed to have realized that they put drafting-lawyers up to a near impossible challenge to create a bullet-proof proposal for settlement.

The 4th District makes the issue easier, or harder, depending upon how you look at it, by issuing the deceptively short one-page opinion in Gloria Alioto-Alexander v. Toll Brothers (Bros.) Inc. and John Barr (Damoorgian, May, Tutter).

Plaintiff sued defendant company for alleged negligent driving of its defendant employee. Plaintiff loses case. Defendant company had served a $5,000 Proposal for Settlement, on its behalf only, which "provided that the offer was conditioned upon the dismissal of the entire action, including the claims against Barr."

Was this a joint proposal which failed to apportion the amounts attributable to both defendants? Or a Proposal on behalf of a single defendant with a broad non-monetary condition.

Without much fanfare, the Panel held this was not a joint proposal since the defendant company alone was offering the money. The dismissal of the entire suit, including claims against co-defendant, were "simply a condition."

For a prior discussion of how Proposals were served (and often failed) in these vicarious liability situations, see Building a Better Proposal for Settlement. This post provides a broad supplement to this area of the law after the article was published.

Here's some comparable cases not mentioned in this Opinion:

1. Barbara Elaine Esters v. Barbara Russell (2d DCA 2006): Plaintiff serves proposal to two defendants, one of whom was vicariously liable for other. Court suggests that serving only one defendant and revealing the intention to dismiss entire case may be valid.

2. D.A.B. Constructors v. Oliver (5th 2005): Panel of the 5th DCA appears to reluctantly find a joint proposal of settlement, where one defendant was only vicariously liable, to be invalid and notes Justice Pariente previously suggested a rule change was in order.

3. Sparklin v. Southern Industrial (5th DCA 2007): Proposal to multiple defendants is invalid since the attached release created ambiguities.

Thanks to Alison Emery at Shutt, Schmidt, Burnett & Noey for the case information.

Full post as published by Florida Arbitration Law on July 20, 2009 (boomark / email).