Why doesn’t this Joint PFS state the amount and terms attributable to each party?

August 26, 2019 |

Proposals for settlement are quagmires muddled with landmines all over.  If used properly, a proposal of settlement can be another strategic tool in your litigation tool belt to effectively resolve a difficult case or posture a case for settlement when it otherwise would not settle.  If you are recommending or preparing a proposal of settlement or “PFS”, you should always review Rule 1.442, Florida Rules of Civil Procedure, and § 768.79, Florida Statutes, prior drafting it as well as check out either Westlaw or LexisNexis for the latest case law discussing this issue. 

Paragraph (c) of Rule 1.442, Florida Rules of Civil Procedure, and paragraph (2) of § 768.79, Florida Statutes, provide the form and content for a proposal for settlement.  It is imperative your proposal follows these rules and guidelines.  Otherwise, you are likely not going to have an effective or valid proposal for settlement, and your opposing counsel and party will not be concerned about the attorney’s fee and costs provisions being enforced—i.e., this means you just lost an opportunity to use one of your litigation tools. 

Rule 1.442(c)(3), Florida Rules of Civil Procedure, states “A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal.  A joint proposal shall state the amount and terms attributable to each party.”  However, the next paragraph in this Rule changes the requirements for joint proposals “when a party is alleged to be solely vicariously, constructively, derivatively, or technically liable.”[1]

Rule 1.442(c)(4), Florida Rules of Civil Procedure, reads “Notwithstanding subdivision (c)(3), when a party is alleged to be solely vicariously, constructively, derivatively, or technically liable, whether by operation of law or by contract, a joint proposal made by or served on such a party need not state the apportionment or contribution as to that party.  Acceptance by any party shall be without prejudice to rights of contribution or indemnity.” 

Hence, a joint PFS in an automobile case by a defendant, on behalf of both defendants where one of the defendants is just vicariously liable due to ownership or title to the vehicle, does not need to apportion out the amount being offered to the plaintiff by each defendant. Instead, it can just state one amount and include a requirement that if accepted, then both defendants must be dismissed with prejudice. 

This is just one of the many quagmires found within the rules governing proposals for settlement.  There are many others depending on the facts of the case, the case strategy, and the ever changing law in this area.  It is important to speak to someone who understands these issues and is in a position to advise you through the potential landmines.  Again, a proper proposal for settlement can be an effective tool in resolving your case and posturing it for resolution that could save you thousands of dollars, if not more, in attorney’s fees, costs and settlement amounts.  The attorneys at Andrews, Crabtree, Knox & Longfellow are prepared and willing and able to assist you in this area. 


[1]               FRCP 1.442(c)(4).

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