Arbitration & Mediation

Picky Issues Control Proposals for Settlement: Proposal Served without a Certificate of Service is... VOID

By Christopher B. Hopkins, Esq.

Florida courts have been clear, almost to a fault, that the Proposal for Settlement rules are strictly construed. For day-to-day practitioners, that approach has created a minefield of picky technicalities complying with the Rule of Civil Procedure and the statute. Tromping through that minefield, the Third District had a blast yesterday in Jose Milton v. John Reyes (Shepherd, Suarez, Rothenberg).

In a personal injury case, the plaintiff served a Proposal for Settlement on defendant and filed a Notice with the court. The Notice included an accurate and appropriate certificate of service. The Proposal was timely, said the right things, and was sent to the right people, but... did not contain a certificate of service (no explanation why not). Rule 1.442(c)(2)(G) requires that a Proposal "shall include a certificate of service in the form required by rule 1.080(f). Remember, there was a certificate of service to the Notice and no dispute as to proper and timely receipt. Does that void a Proposal?

Yes.

In the Florida Supreme Court 2007 decision in Campbell v. Goldman, the Court held that failure to reference section 768.79 (even when it is the only statute on point) will void the Proposal. The First DCA allowed some wiggle room in Jefferson v. City of Lake City, where the Notice had the right statute but the Proposal had a typo -- that was enforceable. Here, a total absence of the certificate of service -- despite all other indicators that everyone timely received it -- was fatal.

Practice tip: take a look at the 2008 article, "Building a Better Proposal for Settlement." It is on the right side of your screen, under "Articles." It would have avoided this problem.

Practice tip: pinned down by what appears to be a valid Proposal? Crack open the Rule and Statute and carefully compare the Proposal you are facing. The Rule/Statute combination is so wrought with technical requirements, you may -- like this defendant -- just get lucky.

Perhaps a form Proposal in the Rules of Civil Procedure would relieve these issues?

Full post as published by Florida Arbitration Law on October 08, 2009 (boomark / email).