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Filing # 136270236 E-Filed 10/11/2021 10:43:24 AM
IN THE CIRCUIT COURT OF THE 11th
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
LAMAR MITCHELL,
CASE NO.: 2019-008931-CA-01
Plaintiff,
vs.
MIAMI-DADE COUNTY and GINLEY
LAWN SERVICE & LANDSCAPING,
INC., a Florida For Profit Corporation,
Defendants.
NOTICE OF FILING DEFENDANT, GINLEY LAWN SERVICE &
LANDSCAPING, INC.’S SUPPLEMENTAL AUTHORITY IN SUPPORT OF
THEIR MOTION FOR ATTORNEYS’ FEES AND COSTS
Defendant, Ginley Lawn Service & Landscaping, Inc., (“Ginley”), by and
through its undersigned counsel, hereby files the following supplemental authority
in further support of their Motion For Attorneys’ Fees And Costs, which was filed
with the court on February 24, 2021, and states the following:
1. Miley v. Nash, 171 So. 3d 145 (Fla. 2d DCA 2015).
Date: October 11, 2021
Respectfully submitted,
/s/ Niva M. Harney-Hiller
Niva M. Harney-Hiller, Esq.
Florida Bar No. 31058
nharney@hamiltonmillerlaw.com
Reeba Hartley-Belle, Esq.
Florida Bar Number: 117036
rhartleybelle@hamiltonmillerlaw.com
HAMILTON, MILLER & BIRTHISEL, LLP
150 Southeast Second Avenue, Suite 1200
1
150 SOUTHEAST SECOND AVENUE, SUITE 1200 · MIAMI, FLORIDA 33131 · TELEPHONE: 305-379-3686 · FACSIMILE: 305-379-3690
CASE NO.: 2019-008931-CA-01
Miami, Florida 33131
Telephone: (305) 379-3686
Facsimile: (305) 379-3690
Counsel for Defendant, Ginley Lawn Service &
Landscaping, Inc.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on October 11, 2021 the foregoing document is
being filed with the Clerk of Court using the E-filing Portal and served on all counsel
of record or pro se parties identified on the below Service List either via transmission
of Notices of Electronic Filing generated by the E-filing Portal or in some other
authorized manner for those counsel or parties who are not authorized to receive
electronically via the E-filing Portal.
/s/ Niva M. Harney-Hiller
Niva M. Harney-Hiller, Esq.
SERVICE LIST
Andres Hermida, Esq. Daniel Frastai, Esq.
Florida Bar Number: 1010725 Florida Bar Number: 0666041
MORGAN & MORGAN, P.A. ABIGAIL PRICE-WILLIAMS
703 Waterford Way, Suite 1050 Stephen P. Clark Center
Miami, Florida 33126 111 Northwest First Street,
Telephone: (305) 929-1912 Suite 2810
Facsimile: (305) 929-1930 Miami, Florida 33128-1993
AHermida@forthepeople.com Telephone: (305) 375-5480
JJaime@forthepeople.com Facsimile: (305) 375-5634
Frastai@miamidade.gov
Counsel for Plaintiff, Lamar Mitchell jeane.neal@miamidade.gov
Counsel for Defendant, Miami-
Dade County
2
150 SOUTHEAST SECOND AVENUE, SUITE 1200 · MIAMI, FLORIDA 33131 · TELEPHONE: 305-379-3686 · FACSIMILE: 305-379-3690
Positive
As of: October 11, 2021 1:14 AM Z
Miley v. Nash
Court of Appeal of Florida, Second District
July 10, 2015, Opinion Filed
Case No. 2D14-930
Reporter
171 So. 3d 145 *; 2015 Fla. App. LEXIS 10500 **; 40 Fla. L. Weekly D 1589
Order reversed; matter remanded to trial court to
GLENN MILEY and KYLE MILEY, Appellants, v.
determine amount of costs and fees.
MARTHA NASH, Appellee.
Subsequent History: Review denied by, Motion LexisNexis® Headnotes
granted by Nash v. Miley, 2015 Fla. LEXIS 2827 (Fla.,
Dec. 18, 2015)
Prior History: [**1] Appeal from the Circuit Court for
Manatee County; Diana L. Moreland, Judge.
Civil Procedure > Settlements > Offers of
Judgment > Making of Offers
Miley v. Nash, 2015 Fla. App. LEXIS 6257 (Fla. Dist. Ct.
App. 2d Dist., Apr. 29, 2015) Torts > Procedural
Matters > Settlements > Settlement Offers
Core Terms HN1[ ] Offers of Judgment, Making of Offers
settlement, loss of consortium claim, ambiguity,
Fla. R. Civ. P. 1.442(c)(2)(B) requires that a proposal
attorney's fees, trial court, offeree's, lawsuit, cause of
must identify the claim or claims the proposal is
action, damages, costs
attempting to resolve. Courts have found general
statements regarding the claims to be resolved in
Case Summary proposals to be sufficient under the rule. When the
proposal indicates that it seeks to resolve all claims
identified in the complaint, or in a specific count, it is
Overview unnecessary to identify the various elements of
damages in the settlement proposal.
HOLDINGS: [1]-Denial of a motion for entitlement to
attorney's fees and costs pursuant to a settlement
proposal, arising in an action that involved a vehicle
accident, was error because the proposal met the Civil Procedure > Settlements > Offers of
requirements of § 768.79, Fla. Stat. (2013) and Fla. R. Judgment > Making of Offers
Civ. P. 1.442, in that it sufficiently identified the claims to
be resolved and there was no ambiguity in that regard Torts > Procedural
under Rule 1.442(c)(2)(B); [2]-Moreover, the proposal Matters > Settlements > Settlement Offers
met the particularity requirements because the relevant
conditions of the proposal were included and sufficiently HN2[ ] Offers of Judgment, Making of Offers
described; [3]-Although the proposal was a joint one
from the vehicle owner and operator, as the owner was Settlement proposals must clarify which of an offeree's
solely vicariously liable, no apportionment was outstanding claims against the offeror will be
necessary under Fla. R. Civ. P. 1.442(c)(4). extinguished by any proposed release.
Outcome
Page 2 of 4
171 So. 3d 145, *145; 2015 Fla. App. LEXIS 10500, **1
Civil Procedure > Settlements > Offers of P.A., Bradenton, for Appellee.
Judgment > General Overview
Judges: CRENSHAW, Judge. VILLANTI, C.J., and
Torts > Procedural KELLY, J., Concur.
Matters > Settlements > Settlement Offers
Opinion by: CRENSHAW
HN3[ ] Settlements, Offers of Judgment
Opinion
Parties should not "nit-pick" the validity of a proposal for
settlement based on allegations of ambiguity unless the
asserted ambiguity could "reasonably affect the
[*147] CRENSHAW, Judge.
offeree's decision" on whether to accept the proposal for
settlement.
In this appeal we review an order denying a motion for
entitlement to attorney's fees and costs pursuant to a
proposal for settlement, which the trial court found failed
Civil Procedure > Settlements > Offers of to strictlycomply with section 768.79, Florida Statutes
Judgment > Making of Offers (2013), and Florida Rule of Civil Procedure 1.442.
Because the trial court erred in finding the proposal for
Torts > Procedural Matters > Multiple settlement legally insufficient, we reverse the order and
Defendants > Distinct & Divisible Harms remand to the trialcourt to determine the amount of
costs and attorney's fees.
Torts > Procedural
Matters > Settlements > Settlement Offers This case arose from a car accident in which Kyle Miley,
driving a vehicle owned by Glenn Miley, collided with a
HN4[ ] Offers of Judgment, Making of Offers vehicle driven by Martha Nash. In a two-count
complaint, Martha Nash sued for bodily injury damages
The Supreme Court of Florida has recently held that in count one, while her husband, Garfield Nash, sued for
when a single offeror submits a settlement proposal to a loss of consortium in count two. The Nashes sued
single offeree and the offer resolves pending claims by Glenn Miley solely for his vicarious liability as the
or against additional parties who are neither offerors nor vehicle's [**2] owner. The Mileys admitted fault but
offerees, it constitutes a joint proposal that is subject to eventually proceeded to a jury trialas to the issues of
the apportionment requirement. causation and damages. During the pretrial phase of the
case Kyle Miley made a proposal for settlement to
Martha Nash, offering to pay the sum of $58,590 in "an
Civil Procedure > Settlements > Offers of attempt to resolve all claims and causes of action
Judgment > Making of Offers resulting from the incident or accident giving rise to this
lawsuit brought by Plaintiff Martha Nash against
Torts > Procedural Matters > Multiple Defendant Kyle Miley." The proposal required that
Defendants > Distinct & Divisible Harms Martha Nash dismiss both Glenn and Kyle Miley from
the lawsuit in exchange for the payment from Kyle Miley
Torts > Procedural and that the parties each pay their own attorney's fees
Matters > Settlements > Settlement Offers and costs. The proposal did not mention Garfield Nash
or his then-pending loss of consortium claim; Mr. Nash
HN5[ ] Offers of Judgment, Making of Offers ultimately dropped his claim prior to trial.Martha Nash
rejected the proposal and the case proceeded to trial,
See Fla. R. Civ. P. 1.442(c)(4). resulting in a jury verdict in her favor in the amount of
$17,955 as damages for past medical expenses
Counsel: Dorothy Venable DiFiore of Haas, Lewis, incurred as a result of the crash. The trialcourt then
DiFiore P.A., Tampa (withdrew after briefing); Betsy E. denied a motion seeking attorney's fees and costs under
Gallagher of Kubicki Draper, P.A., Tampa (substituted section 768.79. In so ruling, the trialcourt determined
as counsel of record), for Appellants. that the proposal for settlement was deficient for (1)
Derek A. Reams of Leonard A. McCue & Associates, "fail[ing] to specifically identify the claim or [**3] claims
the proposal is attempting to resolve," (2) "fail[ing]to
Page 3 of 4
171 So. 3d 145, *147; 2015 Fla. App. LEXIS 10500, **3
specifically address the pending loss of consortium the language used in the complaint [**5] in identifying
claim," (3) "fail[ing] to state with particularity any relevant the claims the proposal is attempting to resolve, the
conditions," (4) "fail[ing] to specifically state the amount language used by Kyle Miley in the proposal did not
and terms of the proposal attributable to each party," contain a level of ambiguity that would render Martha
and (5) "requir[ing] dismissal of Defendants Kyle Miley Nash unable to "make an informed decision without
and Glenn Miley without designating the amount needing clarification." State Farm Mut. Auto. Ins. Co. v.
attributable to each Defendant." We address each of Nichols, 932 So. 2d 1067, 1079 (Fla. 2006) ("[G]iven the
these findings in turn. nature of language, it may be impossible to eliminate all
ambiguity."). We distinguish the proposal in this case
The proposal sufficiently identified the claims to be from the proposal addressed in Nichols, which the
resolved. HN1[ ] Florida Rule of Civil Procedure supreme court found to be "too ambiguous to satisfy
1.442(c)(2)(B) requires that a proposal must "identify the rule 1.442." Id. In Nichols, the proposal stated itwould
claim or claims the proposal is attempting to resolve." settle "any and all of Nichols's claims and causes of
The language of the proposal clearly announced that it action in, or arising out of, the above-styled case." Id.
was targeted to address "all claims and causes of action Importantly,
resulting from the incident or accident giving rise to th[e]
lawsuit brought by Plaintiff Martha Nash against [a]t the time of the offer, Nichols not only had a
Defendant Kyle Miley." Thus, the proposal was only pending PIP claim against State Farm, but also a
meant to resolve the bodily injury claims brought by UM claim arising from the same accident and of
Martha Nash in count one and not the loss of greater value. Although that claim was not
consortium claim brought [*148] by Garfield Nash in technically "in .. . the above-styled case," it could
count two. Courts have found such general statements have been viewed as a claim "arising out of . . . the
regarding the claims to be resolved in proposals to be above-styled case," because it arose from the same
sufficient under the rule. See, e.g., D.A.B. Constructors, set of facts.
Inc. v. Oliver, 914 So. 2d 462, 463 (Fla. 5th DCA 2005)
(finding the joint proposal deficient for [**4] failingto Id. The supreme court explained that under these facts,
apportion amounts but noting the proposal to "settle all the proposal was ambiguous because it failed to "clarify
which of [the] offeree's outstanding claims against the
claims raised in the action" was otherwise compliant
offeror will be extinguished [**6] by any proposed
with rule 1.442); Bd. of Trs. of Fla. Atl. Univ. v. Bowman,
release." Id. at 1080. Unlike in Nichols, Martha Nash
853 So. 2d 507, 508 (Fla. 4th DCA 2003) (finding the
had no other pending claims at the time of the proposal.
language "[a]ny and all claims which were raised or
Nothing in Kyle Miley's proposal could be read to
could have been raised in this action by any party
extinguish any claims besides those relating to the
against any other party," to be unambiguous). Indeed,
lawsuit brought by Martha Nash. Accordingly, there is
this court has explained that "[w]hen the proposal
no ambiguity in this portion of the proposal that could
indicates that itseeks to resolve allclaims identified in
reasonably affect Martha Nash's decision to accept or
the complaint, or in a specific count, it is unnecessary to
reject the proposal.
identify the various elements of damages in the
settlement proposal." Lucas v. Calhoun, 813 So. 2d 971,
The proposal did not need to address Garfield Nash's
972 n.1 (Fla. 2d DCA 2002). The use of the phrases "all
separate loss of consortium claim. As explained above,
claims" and "giving rise to th[e] lawsuit" is appropriate
the rule requires that a proposal identify the claims it is
because, although Martha Nash brought only one
"attempting to resolve," not every claim related to the
"count" in the complaint, within that count she
suit brought by either plaintiff.Although the loss of
specifically sought damages including
consortium claim was pending against the Mileys
bodily injury and resulting pain and suffering,
[*149] at the time of the proposal, that claim was not
disability, disfigurement, mental anguish, loss of
affected by the proposal for settlement because itwas
capacity for the enjoyment of life, expense of
Garfield Nash's separate and distinct claim, despite its
hospitalization in the past and/or future, medical
derivative nature. See United Servs. Auto. Ass'n v.
and nursing care and treatment in the past and/or
Behar, 752 So. 2d 663, 665 (Fla. 2d DCA 2000)
future, past lost wages, loss of future earning
("Although Mrs. Behar's [loss of consortium] claim is
capabilities . . . and/or aggravation of a previously
derivative, it is her cause of action, not Dr. Behar's and
existing condition.
not their joint claim."). Garfield Nash was stillfree to
While it may have been more specific to refer directly to pursue his loss of consortium claim even if Martha Nash
Page 4 of 4
171 So. 3d 145, *149; 2015 Fla. App. LEXIS 10500, **6
accepted the proposal because itwould only dismiss amount attributable to Glenn Miley despite the fact that
her claims; [**7] the proposal required no action or the proposal required Martha Nash to dismiss her
input on the part of Garfield Nash whatsoever because claims against him because he was solely vicariously
his cause of action was his own. Cf. Blanton v. Godwin, liable. HN4[ ] The supreme court has recently held that
98 So. 3d 609, 611 (Fla. 2d DCA 2012) (considering a "when a single offeror submits a settlement proposal to
proposal for settlement made by plaintiffwho brought a single offeree . . . and the offer resolves pending
only a loss of consortium claim against one defendant claims by or against additional parties who are neither
resulting from his coplaintiff-wife's injury to be its own offerors nor offerees, it constitutes a joint proposal that
separate proposal). Because the proposal explicitly is subject to the apportionment requirement . . . ."
stated that it was to cover all claims brought by Martha Audiffred v. Arnold, 161 So. 3d 1274, 1280 (Fla. 2d DCA
Nash, it was not deficient for failing to address the other 2015). Thus, because the offer resolved [*150] claims
pending claim in the lawsuit brought by an entirely pending against both Glenn and Kyle Miley it was a joint
different plaintiff.This reasoning is consistent with the offer. However, Audiffred concerned a previous version
supreme court's statement in Nichols that HN2[ ] of rule 1.442 which is not at issue in the instant case. Id.
"settlement proposals must clarify which of an offeree's at 1278 n.2. Rule 1.442 was amended to include
outstanding claims against the offeror will be subsection (c)(4), effective January 1, 2011. See In re
extinguished by any proposed release." 932 So. 2d at Amendments to Fla. Rules of Civil Procedure, 52 So. 3d
1080. Because Garfield Nash was not an offeree under 579, 581 (Fla. 2010). That subsection provides HN5[ ]
the proposal, there was no need to address his claim. "when a party is alleged to be solely vicariously . . .
Accordingly, the failure to mention the loss of liable . . . a joint proposal made by or served on such a
consortium claim did not render the proposal defective. party need not state the apportionment or contributions
as to that party." Fla. R. Civ. P. 1.442(c)(4). Therefore,
Next, the proposal did not failto meet the particularity while the Mileys' proposal was a joint one, because
requirement under the statute and the rule. The relevant Glenn Miley was solely vicariously liable no
conditions of the proposal were included and sufficiently apportionment was necessary.
described: the exact amount Kyle Miley would
pay; [**8] the exact claims the proposal would resolve; Accordingly, the order [**10] denying the motion for
the exact action to be taken by Martha Nash, namely costs and attorney's fees pursuant to section 768.79 is
dismissal; the condition that each party would pay its reversed and the case remanded to the trialcourt for
own attorney's fees; and the additional condition that further proceedings consistent with this opinion.
Glenn Miley would also be dismissed from the suit, as to
Martha Nash. The wording of these conditions does not Reversed and remanded.
create any ambiguity as to what the effect of accepting
the proposal will be. See Carey-All Transp., Inc. v. VILLANTI, C.J., and KELLY, J., Concur.
Newby, 989 So. 2d 1201, 1206 (Fla. 2d DCA 2008)
(HN3[ ] "[P]arties should not 'nit-pick'the validity of a
End of Document
proposal for settlement based on allegations of
ambiguity unless the asserted ambiguity could
'reasonably affect the offeree's decision' on whether to
accept the proposal for settlement." (quoting Nichols,
932 So. 2d at 1079)). If accepted, Kyle Miley's proposal
would be "capable of execution without the need for
judicial interpretation." Lucas, 813 So. 2d at 973. In
Lucas, this court found a proposal deficient under the
rule because it "failed to indicate whether the claims
would be resolved by a release (full or partial), a
dismissal, or any other means." Id. Here, unlike Lucas,
Kyle Miley specifically requested Martha Nash's claims
be resolved by dismissal in exchange for an explicit
monetary amount. Accordingly, the terms of the
proposal satisfy the particularity requirement.
Finally, the proposal [**9] did not need to apportion any
Preview
Filing # 136270236 E-Filed 10/11/2021 10:43:24 AM IN THE CIRCUIT COURT OF THE 11th JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA LAMAR MITCHELL, CASE NO.: 2019-008931-CA-01 Plaintiff, vs. MIAMI-DADE COUNTY and GINLEY LAWN SERVICE & LANDSCAPING, INC., a Florida For Profit Corporation, Defendants. NOTICE OF FILING DEFENDANT, GINLEY LAWN SERVICE & LANDSCAPING, INC.’S SUPPLEMENTAL AUTHORITY IN SUPPORT OF THEIR MOTION FOR ATTORNEYS’ FEES AND COSTS Defendant, Ginley Lawn Service & Landscaping, Inc., (“Ginley”), by and through its undersigned counsel, hereby files the following supplemental authority in further support of their Motion For Attorneys’ Fees And Costs, which was filed with the court on February 24, 2021, and states the following: 1. Miley v. Nash, 171 So. 3d 145 (Fla. 2d DCA 2015). Date: October 11, 2021 Respectfully submitted, /s/ Niva M. Harney-Hiller Niva M. Harney-Hiller, Esq. Florida Bar No. 31058 nharney@hamiltonmillerlaw.com Reeba Hartley-Belle, Esq. Florida Bar Number: 117036 rhartleybelle@hamiltonmillerlaw.com HAMILTON, MILLER & BIRTHISEL, LLP 150 Southeast Second Avenue, Suite 1200 1 150 SOUTHEAST SECOND AVENUE, SUITE 1200 · MIAMI, FLORIDA 33131 · TELEPHONE: 305-379-3686 · FACSIMILE: 305-379-3690 CASE NO.: 2019-008931-CA-01 Miami, Florida 33131 Telephone: (305) 379-3686 Facsimile: (305) 379-3690 Counsel for Defendant, Ginley Lawn Service & Landscaping, Inc. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on October 11, 2021 the foregoing document is being filed with the Clerk of Court using the E-filing Portal and served on all counsel of record or pro se parties identified on the below Service List either via transmission of Notices of Electronic Filing generated by the E-filing Portal or in some other authorized manner for those counsel or parties who are not authorized to receive electronically via the E-filing Portal. /s/ Niva M. Harney-Hiller Niva M. Harney-Hiller, Esq. SERVICE LIST Andres Hermida, Esq. Daniel Frastai, Esq. Florida Bar Number: 1010725 Florida Bar Number: 0666041 MORGAN & MORGAN, P.A. ABIGAIL PRICE-WILLIAMS 703 Waterford Way, Suite 1050 Stephen P. Clark Center Miami, Florida 33126 111 Northwest First Street, Telephone: (305) 929-1912 Suite 2810 Facsimile: (305) 929-1930 Miami, Florida 33128-1993 AHermida@forthepeople.com Telephone: (305) 375-5480 JJaime@forthepeople.com Facsimile: (305) 375-5634 Frastai@miamidade.gov Counsel for Plaintiff, Lamar Mitchell jeane.neal@miamidade.gov Counsel for Defendant, Miami- Dade County 2 150 SOUTHEAST SECOND AVENUE, SUITE 1200 · MIAMI, FLORIDA 33131 · TELEPHONE: 305-379-3686 · FACSIMILE: 305-379-3690 Positive As of: October 11, 2021 1:14 AM Z Miley v. Nash Court of Appeal of Florida, Second District July 10, 2015, Opinion Filed Case No. 2D14-930 Reporter 171 So. 3d 145 *; 2015 Fla. App. LEXIS 10500 **; 40 Fla. L. Weekly D 1589 Order reversed; matter remanded to trial court to GLENN MILEY and KYLE MILEY, Appellants, v. determine amount of costs and fees. MARTHA NASH, Appellee. Subsequent History: Review denied by, Motion LexisNexis® Headnotes granted by Nash v. Miley, 2015 Fla. LEXIS 2827 (Fla., Dec. 18, 2015) Prior History: [**1] Appeal from the Circuit Court for Manatee County; Diana L. Moreland, Judge. Civil Procedure > Settlements > Offers of Judgment > Making of Offers Miley v. Nash, 2015 Fla. App. LEXIS 6257 (Fla. Dist. Ct. App. 2d Dist., Apr. 29, 2015) Torts > Procedural Matters > Settlements > Settlement Offers Core Terms HN1[ ] Offers of Judgment, Making of Offers settlement, loss of consortium claim, ambiguity, Fla. R. Civ. P. 1.442(c)(2)(B) requires that a proposal attorney's fees, trial court, offeree's, lawsuit, cause of must identify the claim or claims the proposal is action, damages, costs attempting to resolve. Courts have found general statements regarding the claims to be resolved in Case Summary proposals to be sufficient under the rule. When the proposal indicates that it seeks to resolve all claims identified in the complaint, or in a specific count, it is Overview unnecessary to identify the various elements of damages in the settlement proposal. HOLDINGS: [1]-Denial of a motion for entitlement to attorney's fees and costs pursuant to a settlement proposal, arising in an action that involved a vehicle accident, was error because the proposal met the Civil Procedure > Settlements > Offers of requirements of § 768.79, Fla. Stat. (2013) and Fla. R. Judgment > Making of Offers Civ. P. 1.442, in that it sufficiently identified the claims to be resolved and there was no ambiguity in that regard Torts > Procedural under Rule 1.442(c)(2)(B); [2]-Moreover, the proposal Matters > Settlements > Settlement Offers met the particularity requirements because the relevant conditions of the proposal were included and sufficiently HN2[ ] Offers of Judgment, Making of Offers described; [3]-Although the proposal was a joint one from the vehicle owner and operator, as the owner was Settlement proposals must clarify which of an offeree's solely vicariously liable, no apportionment was outstanding claims against the offeror will be necessary under Fla. R. Civ. P. 1.442(c)(4). extinguished by any proposed release. Outcome Page 2 of 4 171 So. 3d 145, *145; 2015 Fla. App. LEXIS 10500, **1 Civil Procedure > Settlements > Offers of P.A., Bradenton, for Appellee. Judgment > General Overview Judges: CRENSHAW, Judge. VILLANTI, C.J., and Torts > Procedural KELLY, J., Concur. Matters > Settlements > Settlement Offers Opinion by: CRENSHAW HN3[ ] Settlements, Offers of Judgment Opinion Parties should not "nit-pick" the validity of a proposal for settlement based on allegations of ambiguity unless the asserted ambiguity could "reasonably affect the [*147] CRENSHAW, Judge. offeree's decision" on whether to accept the proposal for settlement. In this appeal we review an order denying a motion for entitlement to attorney's fees and costs pursuant to a proposal for settlement, which the trial court found failed Civil Procedure > Settlements > Offers of to strictlycomply with section 768.79, Florida Statutes Judgment > Making of Offers (2013), and Florida Rule of Civil Procedure 1.442. Because the trial court erred in finding the proposal for Torts > Procedural Matters > Multiple settlement legally insufficient, we reverse the order and Defendants > Distinct & Divisible Harms remand to the trialcourt to determine the amount of costs and attorney's fees. Torts > Procedural Matters > Settlements > Settlement Offers This case arose from a car accident in which Kyle Miley, driving a vehicle owned by Glenn Miley, collided with a HN4[ ] Offers of Judgment, Making of Offers vehicle driven by Martha Nash. In a two-count complaint, Martha Nash sued for bodily injury damages The Supreme Court of Florida has recently held that in count one, while her husband, Garfield Nash, sued for when a single offeror submits a settlement proposal to a loss of consortium in count two. The Nashes sued single offeree and the offer resolves pending claims by Glenn Miley solely for his vicarious liability as the or against additional parties who are neither offerors nor vehicle's [**2] owner. The Mileys admitted fault but offerees, it constitutes a joint proposal that is subject to eventually proceeded to a jury trialas to the issues of the apportionment requirement. causation and damages. During the pretrial phase of the case Kyle Miley made a proposal for settlement to Martha Nash, offering to pay the sum of $58,590 in "an Civil Procedure > Settlements > Offers of attempt to resolve all claims and causes of action Judgment > Making of Offers resulting from the incident or accident giving rise to this lawsuit brought by Plaintiff Martha Nash against Torts > Procedural Matters > Multiple Defendant Kyle Miley." The proposal required that Defendants > Distinct & Divisible Harms Martha Nash dismiss both Glenn and Kyle Miley from the lawsuit in exchange for the payment from Kyle Miley Torts > Procedural and that the parties each pay their own attorney's fees Matters > Settlements > Settlement Offers and costs. The proposal did not mention Garfield Nash or his then-pending loss of consortium claim; Mr. Nash HN5[ ] Offers of Judgment, Making of Offers ultimately dropped his claim prior to trial.Martha Nash rejected the proposal and the case proceeded to trial, See Fla. R. Civ. P. 1.442(c)(4). resulting in a jury verdict in her favor in the amount of $17,955 as damages for past medical expenses Counsel: Dorothy Venable DiFiore of Haas, Lewis, incurred as a result of the crash. The trialcourt then DiFiore P.A., Tampa (withdrew after briefing); Betsy E. denied a motion seeking attorney's fees and costs under Gallagher of Kubicki Draper, P.A., Tampa (substituted section 768.79. In so ruling, the trialcourt determined as counsel of record), for Appellants. that the proposal for settlement was deficient for (1) Derek A. Reams of Leonard A. McCue & Associates, "fail[ing] to specifically identify the claim or [**3] claims the proposal is attempting to resolve," (2) "fail[ing]to Page 3 of 4 171 So. 3d 145, *147; 2015 Fla. App. LEXIS 10500, **3 specifically address the pending loss of consortium the language used in the complaint [**5] in identifying claim," (3) "fail[ing] to state with particularity any relevant the claims the proposal is attempting to resolve, the conditions," (4) "fail[ing] to specifically state the amount language used by Kyle Miley in the proposal did not and terms of the proposal attributable to each party," contain a level of ambiguity that would render Martha and (5) "requir[ing] dismissal of Defendants Kyle Miley Nash unable to "make an informed decision without and Glenn Miley without designating the amount needing clarification." State Farm Mut. Auto. Ins. Co. v. attributable to each Defendant." We address each of Nichols, 932 So. 2d 1067, 1079 (Fla. 2006) ("[G]iven the these findings in turn. nature of language, it may be impossible to eliminate all ambiguity."). We distinguish the proposal in this case The proposal sufficiently identified the claims to be from the proposal addressed in Nichols, which the resolved. HN1[ ] Florida Rule of Civil Procedure supreme court found to be "too ambiguous to satisfy 1.442(c)(2)(B) requires that a proposal must "identify the rule 1.442." Id. In Nichols, the proposal stated itwould claim or claims the proposal is attempting to resolve." settle "any and all of Nichols's claims and causes of The language of the proposal clearly announced that it action in, or arising out of, the above-styled case." Id. was targeted to address "all claims and causes of action Importantly, resulting from the incident or accident giving rise to th[e] lawsuit brought by Plaintiff Martha Nash against [a]t the time of the offer, Nichols not only had a Defendant Kyle Miley." Thus, the proposal was only pending PIP claim against State Farm, but also a meant to resolve the bodily injury claims brought by UM claim arising from the same accident and of Martha Nash in count one and not the loss of greater value. Although that claim was not consortium claim brought [*148] by Garfield Nash in technically "in .. . the above-styled case," it could count two. Courts have found such general statements have been viewed as a claim "arising out of . . . the regarding the claims to be resolved in proposals to be above-styled case," because it arose from the same sufficient under the rule. See, e.g., D.A.B. Constructors, set of facts. Inc. v. Oliver, 914 So. 2d 462, 463 (Fla. 5th DCA 2005) (finding the joint proposal deficient for [**4] failingto Id. The supreme court explained that under these facts, apportion amounts but noting the proposal to "settle all the proposal was ambiguous because it failed to "clarify which of [the] offeree's outstanding claims against the claims raised in the action" was otherwise compliant offeror will be extinguished [**6] by any proposed with rule 1.442); Bd. of Trs. of Fla. Atl. Univ. v. Bowman, release." Id. at 1080. Unlike in Nichols, Martha Nash 853 So. 2d 507, 508 (Fla. 4th DCA 2003) (finding the had no other pending claims at the time of the proposal. language "[a]ny and all claims which were raised or Nothing in Kyle Miley's proposal could be read to could have been raised in this action by any party extinguish any claims besides those relating to the against any other party," to be unambiguous). Indeed, lawsuit brought by Martha Nash. Accordingly, there is this court has explained that "[w]hen the proposal no ambiguity in this portion of the proposal that could indicates that itseeks to resolve allclaims identified in reasonably affect Martha Nash's decision to accept or the complaint, or in a specific count, it is unnecessary to reject the proposal. identify the various elements of damages in the settlement proposal." Lucas v. Calhoun, 813 So. 2d 971, The proposal did not need to address Garfield Nash's 972 n.1 (Fla. 2d DCA 2002). The use of the phrases "all separate loss of consortium claim. As explained above, claims" and "giving rise to th[e] lawsuit" is appropriate the rule requires that a proposal identify the claims it is because, although Martha Nash brought only one "attempting to resolve," not every claim related to the "count" in the complaint, within that count she suit brought by either plaintiff.Although the loss of specifically sought damages including consortium claim was pending against the Mileys bodily injury and resulting pain and suffering, [*149] at the time of the proposal, that claim was not disability, disfigurement, mental anguish, loss of affected by the proposal for settlement because itwas capacity for the enjoyment of life, expense of Garfield Nash's separate and distinct claim, despite its hospitalization in the past and/or future, medical derivative nature. See United Servs. Auto. Ass'n v. and nursing care and treatment in the past and/or Behar, 752 So. 2d 663, 665 (Fla. 2d DCA 2000) future, past lost wages, loss of future earning ("Although Mrs. Behar's [loss of consortium] claim is capabilities . . . and/or aggravation of a previously derivative, it is her cause of action, not Dr. Behar's and existing condition. not their joint claim."). Garfield Nash was stillfree to While it may have been more specific to refer directly to pursue his loss of consortium claim even if Martha Nash Page 4 of 4 171 So. 3d 145, *149; 2015 Fla. App. LEXIS 10500, **6 accepted the proposal because itwould only dismiss amount attributable to Glenn Miley despite the fact that her claims; [**7] the proposal required no action or the proposal required Martha Nash to dismiss her input on the part of Garfield Nash whatsoever because claims against him because he was solely vicariously his cause of action was his own. Cf. Blanton v. Godwin, liable. HN4[ ] The supreme court has recently held that 98 So. 3d 609, 611 (Fla. 2d DCA 2012) (considering a "when a single offeror submits a settlement proposal to proposal for settlement made by plaintiffwho brought a single offeree . . . and the offer resolves pending only a loss of consortium claim against one defendant claims by or against additional parties who are neither resulting from his coplaintiff-wife's injury to be its own offerors nor offerees, it constitutes a joint proposal that separate proposal). Because the proposal explicitly is subject to the apportionment requirement . . . ." stated that it was to cover all claims brought by Martha Audiffred v. Arnold, 161 So. 3d 1274, 1280 (Fla. 2d DCA Nash, it was not deficient for failing to address the other 2015). Thus, because the offer resolved [*150] claims pending claim in the lawsuit brought by an entirely pending against both Glenn and Kyle Miley it was a joint different plaintiff.This reasoning is consistent with the offer. However, Audiffred concerned a previous version supreme court's statement in Nichols that HN2[ ] of rule 1.442 which is not at issue in the instant case. Id. "settlement proposals must clarify which of an offeree's at 1278 n.2. Rule 1.442 was amended to include outstanding claims against the offeror will be subsection (c)(4), effective January 1, 2011. See In re extinguished by any proposed release." 932 So. 2d at Amendments to Fla. Rules of Civil Procedure, 52 So. 3d 1080. Because Garfield Nash was not an offeree under 579, 581 (Fla. 2010). That subsection provides HN5[ ] the proposal, there was no need to address his claim. "when a party is alleged to be solely vicariously . . . Accordingly, the failure to mention the loss of liable . . . a joint proposal made by or served on such a consortium claim did not render the proposal defective. party need not state the apportionment or contributions as to that party." Fla. R. Civ. P. 1.442(c)(4). Therefore, Next, the proposal did not failto meet the particularity while the Mileys' proposal was a joint one, because requirement under the statute and the rule. The relevant Glenn Miley was solely vicariously liable no conditions of the proposal were included and sufficiently apportionment was necessary. described: the exact amount Kyle Miley would pay; [**8] the exact claims the proposal would resolve; Accordingly, the order [**10] denying the motion for the exact action to be taken by Martha Nash, namely costs and attorney's fees pursuant to section 768.79 is dismissal; the condition that each party would pay its reversed and the case remanded to the trialcourt for own attorney's fees; and the additional condition that further proceedings consistent with this opinion. Glenn Miley would also be dismissed from the suit, as to Martha Nash. The wording of these conditions does not Reversed and remanded. create any ambiguity as to what the effect of accepting the proposal will be. See Carey-All Transp., Inc. v. VILLANTI, C.J., and KELLY, J., Concur. Newby, 989 So. 2d 1201, 1206 (Fla. 2d DCA 2008) (HN3[ ] "[P]arties should not 'nit-pick'the validity of a End of Document proposal for settlement based on allegations of ambiguity unless the asserted ambiguity could 'reasonably affect the offeree's decision' on whether to accept the proposal for settlement." (quoting Nichols, 932 So. 2d at 1079)). If accepted, Kyle Miley's proposal would be "capable of execution without the need for judicial interpretation." Lucas, 813 So. 2d at 973. In Lucas, this court found a proposal deficient under the rule because it "failed to indicate whether the claims would be resolved by a release (full or partial), a dismissal, or any other means." Id. Here, unlike Lucas, Kyle Miley specifically requested Martha Nash's claims be resolved by dismissal in exchange for an explicit monetary amount. Accordingly, the terms of the proposal satisfy the particularity requirement. Finally, the proposal [**9] did not need to apportion any