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The post below was published on Thursday, December 30th, 2010 at 8:50 AM.

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Second District: Rule 1.442, Settlement Proposals

Those who keep track of Florida’s proposal for settlement case law, not to mention those interested in dog bite cases, will be interested in this decision. A defendant made a $1500 proposal for settlement and, later obtaining a defense verdict from a jury, sought attorney’s fees based on the proposal. The trial court denied that motion because the proposal was predicated on a credibility battle as well as a legal position that the defendant lost.

The Second District reversed. The district court explained that the defendant was entitled to fees unless the offer was not made in good faith, and the trial court never stated that the offer was not made in good faith. The district court further explained that focusing on the credibility battle improperly placed the inquiry’s focus on the recipient’s reasons for rejecting the offer, which are not relevant. In the district court’s view, the defendant established she could reasonably conclude her exposure to liability at trial was nominal, and thus the court held she was entitled to fees.

The decision ends with an apparent expression of agreement with an observation Judge Klein made long ago that the opportunity to make nominal settlement offers gives defendants an unfair advantage over plaintiffs.

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