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Florida First DCA rules that codefendant’s timely acceptance of plaintiff’s proposal for settlement was “postoffer settlement” required to be added to amount of net judgment against defendant in determining entitlement to attorney’s fees under F.S. § 768.79

On October 30, 2019, in Wilcox v. Neville, No. 1D18-4057, the Florida First DCA reversed a trial court order denying the plaintiff motion’s motion for fees and costs pursuant to § 768.79, Florida Statutes (2015), and Fla. R. Civ. P. 1.442. The plaintiff in this motor vehicle negligence case had sued both the owner and the driver of the vehicle that struck her. Sher served separate proposals for settlement on each defendant. The owner of the vehicle accepted her proposal in the amount of $60,400, but the driver declined his proposal and the jury subsequently returned a verdict against him for $126,592.33. After reduction for the $60,400 settlement and PIP benefits that had been paid, the net judgment was for $58,865.73. In determining whether the plaintiff reached the 125% threshold (the ratio of the judgment to the offer) permitting an award of attorney’s fees and costs, the trial court refused to add to the amount of the net judgment to the $60,400 settlement with the codefendant. The trial court reasoned that the provision in § 768.79(6)(b) requiring the inclusion of “postoffer settlements by which the verdict was reduced” only applies to settlements reached after the expiration of the 30-day acceptance period. The First DCA rejected this interpretation as contrary to the express language of the statute, which the First DCA construed as applying to any settlement occurring after service of a proposal for settlement.