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Florida Second DCA rules that expert witness deposition fees prepaid by plaintiff for depositions that did not occur until after service of proposal of settlement could not be counted in determining whether judgment satisfied monetary threshold for award of attorney’s fees under Fla. Stat. § 768.79

On September 3, 2021, in Estate of Sweeney, et al., v. Washington, No. 2D20-1848, the Florida Second DCA reversed an award of attorney’s fees to the prevailing plaintiff in a motor vehicle negligence case. The fees had been awarded by the trial court under Fla. Stat. § 768.79 due to the defendant’s failure to accept a proposal for settlement. The defendant argued on appeal that award of fees was in error because it was premised on an erroneous calculation of the amount of the judgment that was includible in determining whether the plaintiff met the 125% monetary threshold under § 768.79, and more specifically, the amount of taxable costs that was includible. The taxable costs included plaintiff’s expert witness deposition costs, but the expert witnesses had not testified prior to the date of the service of the proposal for settlement. The plaintiff argued that the deposition costs should still be included because the experts had been prepaid for their depositions. The Second DCA acknowledged that “arguably” expert deposition fees could be taxed in the trial court's discretionif, for example, the moving party established that it was necessaryto prepay the deposition fee in order to get on the expert's scheduleand that the payment was nonrefundable, citing In re Amends. ToUnif. Guidelines for Tax'n of Costs, 915 So. 2d at 614 (recognizingthe discretionary nature of the trial court's taxation of costs). However, the Second DCA noted that the prepayments were still refundable as of the date of the service of the proposal. Excluding the prepayments, the plaintiff’s judgment did not meet the 125% threshold under § 768.79 qualifying for the award of attorney’s fees.