A conflict has arisen between the First District and Second District which makes wading into the pool of Proposals for Settlement all the more chilly and murky.

As of April 2008, in Clements v. Rose, the First District found that, in a dog bite case, a Joint Proposal for Settlement to a husband and wife was valid since it stated the amount attributable to each and conditioned settlement on joint acceptance. That seemed simple; indeed, it is common practice to serve a joint proposal if you want two opposing parties to both accept and, on the other hand, you serve two completely separate Proposals (one to each opposing party) if one can settle without the other.

Along comes Attorney's Title Insurance Fund, Inc. v. Joseph W. Gorka and Laurel Lee Larson, where the Second Disctrict (Silberman, Villanti, and Wallace) found that a joint proposal was invalid because the "joint acceptance" conditional term prevented one party from being able to freely evaluate and accept.

Although it wasn't spelled out in the decision, Rule 1.442(c) is not clear if joint proposals require joint acceptance. Arguably, this would make sense otherwise you would just serve one Proposal to each opposing party. In a recent Florida Supreme Court decision, it was noted that each defendant should be able to evaluate the proposal and should be able to settle the suit knowing the extent of their responsibility. Along those lines, the recipient should be able to "independently evaluate and decide." The suggestion here is that one recipient might not have that freedom and independence if the other recipient refuses to pay.

Again, although not brought up in the case, the Second DCA brings to the surface the notion that a plaintiff could sue a deep pocket defendant and then a pauper defendant. Thereafter, the plaintiff could serve a joint proposal for settlement, which requires joint acceptance, and attribute $1 to the "rich" defendant and $1 million to the "poor" defendant. The poor defendant could never pay the million dollars and, lacking the pauper's acceptance, the rich defendant would be stuck facing the $1 Proposal. That could create an abusive situation. Anecdotally, one we haven't seen...

Of note, recall the Clements case was a bit of a mess where even the court could not figure out the reason for the appeal. Nonetheless, the Second DCA took it upon itself to call a direct and express conflict. No cases that we know of exist out of the Third and Fourth DCAs, although I suspect there are some cases involving joint Proposals in those jurisdictions.

Arguably, this case just threw every pending joint proposal for settlement in the State into question. Until this is resolved, be wary of Joint Proposals for Settlements, particularly in the undecided Third and Fourth Districts...