What will terminate the ability to accept a pending Proposal for Settlement?
Submitted by Jessica Gregory on 31 Jan, 2022
with Carri Leininger
Several Florida courts have held that a proposal for settlement cannot be accepted after a trial begins. See Kennard v. Forcht, 495 So.2d 924 (Fla. 4th DCA 1986) (prohibiting plaintiff from accepting offer, where plaintiff received the offer prior to trial but waited until trial was essentially complete to attempt to accept it); Braham v. Carncross, 514 So.2d 71 (Fla. 2nd DCA 1987) (refusing to allow acceptance of offer after jury verdict rendered); O’Brien v. Russell, 698 So.2d 642 (Fla. 3rd DCA 1997) (rejecting plaintiff’s contention that because section 768.79, Florida Statutes, allows him a full thirty days to accept the defendant’s offer of judgment, he could, immediately after a defense verdict, accept the offer made twelve days before trial).
The Fourth DCA has also held that an award of final summary judgment will terminate the ability to accept a pending offer of judgment. See Kroener v. Fla. Ins. Guar. Ass’n, 63 So. 3d 914 (Fla. 4th DCA 2011). The reasoning behind this is that, to allow acceptance of an offer after entry of final summary judgment would frustrate the purpose of Rule 1.442, which is to encourage settlements and avoid protracted litigation. Id. at 920.
However, in a recent decision, the Fourth DCA held that an award of summary judgment on four out of five pending counts will not terminate a pending offer of judgment. See Inspired Prod. Grp., LLC v. Inspired Dev. Grp., LLC, No. 4D20-2326, 2021 WL 5349172 (Fla. Dist. Ct. App. Nov. 17, 2021). In Inspired Prod. Grp., the court noted that while a party is precluded from accepting a pending offer for settlement after the grant of a final judgment, if the summary judgment order does not resolve all claims, a pending offer can still be accepted or withdrawn after the summary judgment order has been issued.
The takeaway- if there is an offer of judgment pending at the time of summary judgment, pay close attention to whether the order on summary judgment fully resolves all claims.