We are sensing a connection between litigation involving Hyundai and Proposals for Settlements... perhaps just a coincidence which we will explain in a moment. What is a continuing trend, however, is that Florida courts, more likely than not, strike down Proposals for Settlements when the issue goes on appeal. So much for encouraging settlement -- a response voiced by a sitting appellate judge.

Let's set the stage for a moment. In the last year, more than half of the Florida state appellate decisions involving Proposals have stricken them. Going back further, the failure rate increases. Our coverage of a May 2008 First DCA opinion provided the groundwork for our theory that Proposals are "tricky little creatures." We then published an article (available on the right side of your screen under "ADR Materials") about how to "Build a Better Proposal for Settlement." Then, in September 2008, a conflict emerged over the meaning of joint Proposals for Settlement (when two or more parties serve one proposal on an opponent). Thereafter, the Fourth DCA shot down a failed joint Proposal in Jacqueline Brower-Eger v. Lisa Noon. Finally, the first case we covered in 2009 was Central Motor Company d/b/a Central Hyundai et al v. Earlene P. Shaw, where the Third DCA shot down a modified attempt at a joint Proposal. Enter Hyundai into our discussion.

The issue of joint Proposals for Settlement under Florida Statute 768.79 and Florida Rule of Civil Procedure 1.442 jumped back to life in the March 18, 2009 Fourth District opinion of Daila Cano v. Hyundai Motor America, Inc. and Guillermo Cano, where the full court (with Hazouri concurring) held that the Proposal form was not valid. Assuming that the same divisions of Hyundai are involved in the Shaw case, supra, and this Cano case, we humbly suggest they consider and adopt these Proposal for Settlement guidelines. But this is a tricky area and we give them credit for aggressively serving Proposals and defending their cases with vigor.

In the Cano opinion, a dispute arose over husband and wife's purchase of a vehicle, for which a warranty lawsuit resulted. Before trial, Hyundai served the couple with a single, joint Proposal for Settlement which did not set forth the amount of money attributed to each claimant. The case went to trial but the husband was dropped as a party. Hyundai won. The trial court upheld the Proposal nonetheless, holding it was valid because the Canos' claims were indistinguishable. The Fourth disagreed.

Under the Brower-Eger v. Noon decision, a joint proposal shall state the amount and terms attributable to each party [Fla. R. Civ. P. 1.442(c)(3)] and our Supreme Court has rejected any deviation from the strict requirements of [F.S. 768.79] and [Rule 1.442] [which lead the court to conclude that] a settlement offer made to or from to or more parties... must specify the amount attributable to each of them." This, the court held, was a bright line rule.

Here, there were two plaintiffs and Hyundai's Proposal failed to specify the amount attributable to each; although their claims may have been indistinguishable, it did not change the outcome. The court found there are no exceptions to the multiple-party-appportionment-rule.

Judge Hazouri echoed the First DCA's 2005 call for the Florida Supreme Court to re-visit Rule 1.442 in order to amend it so that it less strict and more favorable to encouraging settlements.