What happens when a Proposal for Settlement is served by plaintiff on defendant in good faith -- and then plaintiff later adds a new claim and beats the Proposal at trial ONLY because of the new claim?

In yesterday's decision in Eucenda Segundo v. Cedric Reed out of the Third District, the panel (Shepherd, Suarez, and Rothenberg) considered that very issue.

In this auto accident case, the plaintiff originally claimed shoulder and neck injuries and served a Proposal for Settlement on the defendant for $10,000 (apparently the amount of available insurance). That Proposal expired.

Six months later, plaintiff's counsel determined that there may be a claim for a shoulder injury. That shoulder injury became part of the case that was tried. It was undisputed that neither side considered or relied upon the shoulder injury when the Proposal had been served and rejected.

The plaintiff won at trial and, if you broke down the verdict, it was evident that the "new" shoulder injury pushed the verdict more than 25% above the Proposal. In other words, but for the "new" claim which was plead after the Proposal expired, the plaintiff would NOT have beaten the Proposal.

Should the defendant, under these circumstances, still be sanctioned under Florida Statute 768.79 and Rule 1.442?

No, says the Third DCA, ruling that, while the Proposal was made in good faith based upon information known at the time, the trial court abused its discretion under Florida Statute 768.79(7)(b) by not considering "all other relevant criteria" when deciding the amount of fees.

Interestingly, the appellate court reversed and sent the matter back to the trial court to use (better?) discretion in reviewing and awarding fees. The defendant had proposed paying fees limited to those incurred between the expiration of the Proposal and the development of the "new" claim, which was about $1,700 in fees.