What Is an Offer of Judgment in a Florida Injury Case?

The offer of settlement is an integral part of any Florida civil claim. An offer of settlement is a way to force the other side to formally accept or reject a settlement. It’s an effective way to enforce serious consideration of a settlement offer. Our Miami personal injury attorneys explain offers of judgment in Florida.

What Is an Offer of Judgment?

An offer of judgment is a formal proposal to resolve a civil claim. One party makes the offer to the other as a proposal to formally settle the case. The offer is legally binding if the other side accepts it. If a party refuses an offer of judgment, and they receive a considerably worse outcome at trial, the party may owe the offering party reasonable attorney fees.

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Florida Law 768.79 – Florida Offers of Judgment in a Negligence Action

Florida law 768.79 covers offers of judgment in negligence civil actions in the State of Florida.[1] The law says that either party may make an offer of judgment and demand for settlement.

An offer of judgment is a formal, written proposal made from one party to the other. The offer states the terms at which the party making the offer is willing to resolve the case. The other side has 30 days to accept the offer, or it is considered rejected.

Offers of Judgment in Florida Personal Injury Cases

Offers of judgment in Florida personal injury cases are a way of resolving a Florida civil claim. Either side may formally approach the other party, in writing, and state that they are willing to resolve the case on specified terms. The other side has 30 days to accept the proposal. If the parties agree to an offer of judgment, they give up their trial rights, and the case ends on the terms that they agree to.

Attorney Fees in a Florida Offer of Judgment

If the other party does not accept the offer of judgment within 30 days, the party who rejects the offer may be ordered to pay attorney fees to the party who makes the offer. Whether or not attorney fees are awarded depends on how the parties fare at trial compared to what the offer was. If the plaintiff files the offer, and the defendant rejects it, attorney fees apply if the plaintiff wins 25% more than they initially offered to the defendant. On the other hand, if the defendant files the offer, and the plaintiff rejects it, and the award is 25% or better from the defendant’s perspective, it might be the plaintiff who owes the defendant attorney fees.

If the defendant wins attorney fees from an offer of judgment, the amount of the fees is offset by the amount that the plaintiff wins. In other words, the amount of the attorney fees gets subtracted from what the jury awards the plaintiff at trial. Sometimes, the plaintiff may end up owing the defendant money when all is said and done.

How to File a Florida Offer of Judgment

To file a Florida offer of judgment, a litigant must:

  1. State the offer of judgment in writing. Oral offers of settlement are not enforceable.
  2. Identify that the offer is being made pursuant to Florida Statute 768.79.
  3. Name the party making the offer and name the party that it is made to. In other words, identify that offer is from the plaintiff to the defendant or from the defendant to the plaintiff.
  4. State the total amount of the offer, including identifying if there is compensation for punitive damages.
  5. Identify the claims that are to be resolved in the offer of judgment.
  6. Serve the offer on the other party. It’s not necessary to file the offer of judgment with the court unless the other party accepts it, or you need to enforce it to get attorney fees.

Under Florida law, it’s presumed that an offer for settlement includes all damages.

Can a Party Withdraw an Offer of Judgment in Florida?

Yes, a party can withdraw an offer of judgment in Florida. Even before the 30 days to accept expires, the party that makes the offer can withdraw it. The party making the offer must withdraw it before the other party files its acceptance of the offer.

What Happens If an Offer of Judgment Is Vague?

When an offer of judgment is unclear, the court may or may not still accept it. Under Saenz v. Campos, an offer is void if it is too vague.[2] However, there’s some gray area within the law about what makes an offer vague. Time limits set in Florida law and the Florida Rules of Civil Procedure are strictly enforced.

Florida Rules of Civil Procedure for Offers of Judgment – Rule 1.442

In addition to the requirements of Florida Statute 768.79, Florida Rules of Civil Procedure 1.442 also creates rules regarding offers of judgment in Florida personal injury litigation.[3] Litigants must be sure to comply with both the law and the court rule as they relate to offers of judgment in their case.

Florida Rules of Civil Procedure 1.442 reiterates many of the same rules that are found in Florida law 768.79. Under rule 1.442, a defendant may make an offer no sooner than 90 days after the case begins. Similarly, the plaintiff may make an offer no sooner than 90 days after the service of process.

Florida Offers of Judgment as a Personal Injury Victim

As a personal injury victim, an offer of judgment can help you. An offer of judgment makes the other party come to the table, so to speak, to consider a settlement offer. It creates consequences if the defendant unreasonably refuses a settlement offer. Generally, offers of judgment can be a positive litigation tool for a plaintiff in a personal injury case. They must also be carefully addressed if you receive an offer from the defendant.

An experienced Miami injury attorney can help you comply with the law and use the offer of judgment procedure to your advantage. Call the experienced personal injury lawyers at Bernstein & Maryanoff to talk about your case.

Sources

[1] FLA. STAT. § 768.79 (2019)

[2] Saenz v. Campos, 967 So.2d 1114 (Fla. 4th D.C.App. 2007)

[3] Fla. R. Civ. P. 1.442

About the Author

Jack G. Bernstein, ESQ.

Jack Bernstein is a hard working and highly motivated personal injury attorney in Miami, Florida with over three decades of experience. He is a strategist and idea person, with a genuine passion for helping his firm’s clients. If you've been injured, contact Jack Bernstein today for a free evaluation of your case.

The information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.