5D10-2068 Andrews v. Frey

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D10-2068

Case Date: 07/25/2011

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2011

KIMBERLY M. ANDREWS, ET AL., Appellants, v. Case No. 5D10-2068 CORRECTED

RUDOLPH E. FREY AND SHANNON D. FREY, Appellees. ________________________________/ Opinion filed July 29, 2011 Appeal from the Circuit Court for Orange County, Cynthia Z. Mackinnon, Judge. James C. Hauser of Attorney's Fees in Florida, Maitland, for Appellant. Mark D. Tinker and Charles W. Hall of Banker Lopez Gassler P.A., St. Petersburg, for Appellee.

COHEN, J. In Nichols v. State Farm Mutual, 851 So. 2d 742, 746 (Fla. 5th DCA 2003), this court stated that a "proposal for settlement is intended to end judicial labor, not create more." (Citation omitted.) This case is but another example demonstrating that the authorizing statute and implementing rule encourage just the opposite. The issue in this

appeal is the validity of a proposal for settlement that conditions acceptance on dismissing a defendant who is not an offeror.1 Appellants, Kimberly M. Andrews and her minor daughter, Kyla Andrews, filed suit against Shannon D. Frey and Rudolph E. Frey, her father (sometimes collectively referred to as "Freys"), for injuries suffered in an automobile accident. Appellants

sought damages from Shannon Frey for her negligence and from Rudolph Frey based on a theory of vicarious liability under the dangerous instrumentality doctrine. The

Freys did not dispute their liability, only that Appellants sustained permanent damages. Prior to trial, Shannon Frey served separate proposals for settlement on both Kimberly Andrews and Kyla Andrews. The proposals for settlement were essentially identical except for the name of the offeree and the amount being offered. Each proposal for settlement identified Shannon Frey as the offeror and required the execution of a "full Release releasing Defendants, SHANNON D. FREY and RUDOLPH E. FREY, and their insurers, with regard to any and all claims that arose as a result of the subject incident set forth in Plaintiff's Complaint . . . ." If accepted, the parties would also file a joint stipulation dismissing the suit with prejudice. As consideration, Shannon Frey offered $50,000 to Kimberly

Andrews and $10,000 to Kyla Andrews. Both offers were rejected. At the conclusion of a jury trial, Kimberly Andrews' net judgment after set-off was $21,416.67; Kyla Andrews' net judgment after set-off was $0. The Freys subsequently moved for attorney's fees and costs based on the rejection of the proposals for We note that this very issue was certified by the Eleventh Circuit Court of Appeals in Auto-Owners Insurance Co. v. Southeast Floating Docks, Inc., 632 F.3d 1195 (11th Cir. 2011). 2
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settlement, notwithstanding the fact that only Shannon Frey served the proposals for settlement. The trial court granted the motion and entered a final judgment against Kimberly Andrews and in favor of the Freys for $34,739.33.2 followed. An offer of judgment or proposal for settlement, as it is often referred to, is intended to encourage settlement of litigation. Without detailing every requirement, this is accomplished by serving a proposal stating the amount, claims being settled, and any conditions and nonmonetary terms on another party to the litigation. See

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