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Changes to Florida’s Proposal for Settlement

For many years, Florida’s defense practitioners have used a Proposal for Settlement (PFS) as a tool to demand certain nonmonetary terms, such as the execution of a settlement release, as a condition to a plaintiff’s acceptance of a PFS. Effective July 1, 2022, however, the Florida Supreme Court has amended Florida Rule of Civil Procedure 1.442, which governs the procedural requirements for a PFS. 

Provisions

The stated purpose of the Court’s Amendment is to “align rule 1.442 with the substantive elements of Florida’s settlement proposal statutes.” Under the Amendment, however, parties are precluded from serving a PFS containing “nonmonetary terms, with the exceptions of a voluntary dismissal of all claims with prejudice and any other nonmonetary terms permitted by statute.” (For example, section 70.001(4)(c), Florida Statutes, lists the nonmonetary terms that a governmental entity may include in a settlement offer when the government action inordinately burdens private property rights, such as land swaps or the transfer of development rights.) Thus, the Amendment no longer permits a defendant to include the execution of a settlement release as a nonmonetary term required for the acceptance of a PFS. Other important nonmonetary settlement terms, such as lien satisfaction, confidentiality and non-disparagement clauses, would similarly be excluded under the Amendment as nonmonetary terms of a PFS. 

Analysis

Through this Amendment, the Court seeks to encourage settlement and reduce litigation over the enforceability of proposals for settlements due to ambiguity concerns. Nevertheless, the greater impact of the Amendment appears to benefit plaintiffs, who typically do not include nonmonetary terms in a PFS. For example, defendants may now be left exposed, among other ramifications, to non-confidential settlements, the amounts of which may likely appear on billboards and advertisements throughout Florida. 

It is important to note that the Amendment does not impact settlement terms and releases that are reached outside of submitting a PFS. When determining whether to accept or serve a PFS, defendants and their insurers should consult with experienced defense counsel who can evaluate the multiple considerations and factors at issue in the case, including the impact of shifting one party’s attorneys’ fees and costs to the other party.

© 2023 Wilson ElserNational Law Review, Volume XII, Number 194
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About this Author

Noelle Sheehan Wilson Elser Attorney
Of Counsel

Noelle Sheehan focuses her practice on complex civil litigation matters from outset to conclusion in state and federal courts involving insurance and general liability defense of matters including personal injury, premises liability, product liability, wrongful death, automobile liability, negligent security, contract disputes, indemnification disputes, Americans with Disabilities Act compliance, nursing home negligence and medical malpractice. She also handles cannabis law matters. In addition, Noelle is a Florida Supreme Court Qualified Arbitrator. 

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407.203.7569
Erin McGrath Corporate Litigation Attorney Wilson Elser Law Firm Florida
Partner

Erin McGrath handles a wide range of cases, including commercial litigation, product liability, professional liability and general liability. She also has experience representing clients in complex construction litigation, errors and omissions (E&O) matters, shareholder disputes, complex toxic tort cases, as well as employment practice matters, including ADA website accessibility compliance. Erin has provided thorough, strategic advice to clients ranging from individuals and small organizations to large corporations. She demonstrates her ability to effectively meet her client’s...

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