PFS extensions

All litigators are very familiar with Proposal for Settlements and the significant tool it can be to either settle a case or gain an upper hand in negotiations. Plaintiff’s attorneys have become particularly adept at filing PFSs early in the litigation to try to force a higher settlement before the defense can get its arms fully around the claim. While Plaintiff’s attorney have the opportunity to become very comfortable with their claims and potential defenses over a long period of time before they file the Complaint, a defense attorney is often forced to gets up to speed very quickly on a claim.

Florida Rule of Civil Procedure 1.442 permits Plaintiffs to file a PFS as early as 91 days after a Defendant has been served. By the same rule, the Defendant only has 30 days to evaluate and accept the PFS once it has been filed. In many cases, it is not uncommon for a PFS to expire before the Defendant has even been able to: obtain the relevant discovery responses from Plaintiff; determine the necessary entities to subpoena; obtain the documents responsive to the subpoenas; conduct the Plaintiff’s deposition; determine facts regarding Plaintiff’s past injuries or treatments (that Plaintiffs conveniently omitted from a demand letter); schedule expert reviews of records; schedule a CME, etc. All of these tasks are essential to being able to fully evaluate and value a claim and a PFS.

Fortunately, pursuant to the Florida Supreme Court’s decision in Koppel v. Ochoa, 243 So.3d 886, 892 (Fla. 2018), Court’s should grant motions for Extension of Time to Respond to a PFS when a litigant can show cause for the extension. In Koppel, the FLSC primarily addressed the issue of whether a Motion for Extension of Time to Accept a PFS automatically tolled the time to accept it, even when a hearing was not conducted. The Court ruled that to enlarge the time to accept a PFS, the PFS Extension Motion must be filed and heard prior to the PFS deadline. Notably, the Court further held that when a timely Motion for Extension is brought and heard within the PFS deadline, the Motion is governed by Fla.R.Civ.P. 1.090 which generally governs extension of time and only requires cause shown (not even good cause) for an extension of time. The Court stated, “Rule 1.090 allows for the time period set forth in rule 1.442 to be enlarged, but this enlargement is at the trial court’s discretion if the motion was filed before expiration of the time period and cause has been shown.” Id. at 892.

Thus, it is important for Defense counsel to be aware that a PFS deadline is not necessarily a hard deadline if the proper steps are taken. The Motion for Extension of Time should be filed and heard early in the 30 day PFS evaluation period. Common reasons for an extension are the need to obtain specific records, the need to conduct Plaintiff’s deposition, or the need to conduct a CME. Although the rule only requires cause shown, the Court is much more likely to grant the Motion if the unfished tasks were already filed, requested or scheduled before the PFS was filed or if they were scheduled immediately thereafter. Further, it is a good practice to suggest a new PFS deadline to the Court which should be a few weeks after the unfinished tasks set forth in the Motion for Extension of Time are expected to be completed.