Hector Gutierrez and Maria Rodriguez v. Security First Insurance Company

• Court: District Court of Appeal of Florida
• Decided: March 28, 2025
• Docket: 6D2023-2546
• Status: Published

Opinion

SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

Case No. 6D2023-2546 Lower Tribunal No. 19-471-CA _____________________________

HECTOR GUTIERREZ and MARIA RODRIGUEZ,

Appellants,

v. SECURITY FIRST INSURANCE COMPANY,

Appellee. _____________________________

Appeal from the Circuit Court for Charlotte County. Geoffrey H. Gentile, Judge.

March 28, 2025

MIZE, J.

In the proceedings below, Appellee Security First Insurance Company

(“Security First”), the defendant, served a joint proposal for settlement on Plaintiffs

Hector Gutierrez and Maria Rodriguez (collectively, “Plaintiffs”) which could only

be accepted by the Plaintiffs jointly and which did not permit each of the Plaintiffs

to independently accept or reject the proposal. At the conclusion of the proceedings

below, the trial court granted Security First’s motion for attorneys’ fees and costs

based on the proposal for settlement. Plaintiffs now appeal the trial court’s final judgment awarding Security First its attorneys’ fees and costs. Because a proposal

for settlement from a defendant to multiple plaintiffs that does not allow each of the

plaintiffs to independently accept or reject the proposal is invalid under Attorneys’

Title Insurance Fund, Inc. v. Gorka, 36 So. 3d 646 (Fla. 2010), we reverse the final

judgment and remand with instructions to deny the motion for attorneys’ fees and

costs.

Background and Procedural History

The Plaintiffs, who are husband and wife, purchased an insurance policy from

Security First to insure their home. After allegedly suffering property damage from

a hurricane, the Plaintiffs filed a claim with Security First. When Security First

denied coverage for the claim, the Plaintiffs sued for breach of contract.

During the litigation, Security First served a proposal for settlement on the

Plaintiffs. The proposal offered to settle the case with both Plaintiffs for one

aggregate amount. The proposal stated in pertinent part:

3. Security First proposes settlement with Plaintiffs, Hector Gutierrez and Maria Rodriguez, in the aggregate amount of $5,000 . . . for full and complete settlement of all claims against Security First [], exclusive of attorney’s fees and costs. If accepted, Security First will pay the plaintiffs’ reasonable attorney’s fees and costs pursuant to Florida Statute 627.428 separate from this Proposal.

4. If accepted, the total amount of this proposal will be paid by Security First to Hector Gutierrez and Maria Rodriguez to settle all claims for money damages asserted or that could have been asserted by Hector Gutierrez and Maria Rodriguez against Security First in the

2 above-captioned lawsuit, inclusive of interest and any extra-contractual damages, but exclusive of attorney’s fees and costs.

....

6. If accepted, Hector Gutierrez and Maria Rodriguez will file a notice of voluntary dismissal with prejudice within ten (10) days from the date of acceptance of this proposal.

7. This Proposal for Settlement shall remain open for a period of thirty (30) days or until withdrawn in writing, whichever occurs first. Failure by Plaintiffs to timely accept this Proposal for Settlement shall constitute a rejection of this Proposal for Settlement and may result in appropriate sanctions being imposed by the Court upon the Plaintiffs, including costs, expenses and reasonable attorney’s fees.

8. Pursuant to Rule 1.442(c)(2)(B), this proposal resolves Plaintiffs’ claim for monetary damages that would otherwise be awarded in a final judgment in the breach of contract action.

The Plaintiffs did not accept the offer within thirty days; thus, it was deemed

rejected. See Fla. R. Civ. P. 1.442(f)(1).

The case proceeded to trial, and the jury returned a verdict in favor of Security

First. After the trial, Security First filed a “Motion for Determination of Entitlement

to Fees and Costs Pursuant to Florida Statutes § 768.79.” In the motion, Security

First argued that it was entitled to recover its attorneys’ fees and costs under Section

768.79, Florida Statutes, because Security First obtained a judgment of no liability

after the Plaintiffs rejected its proposal for settlement. Plaintiffs filed a response in

which they argued that the proposal for settlement was invalid under Florida

Supreme Court precedent because it did not apportion an amount offered to each 3 individual plaintiff but instead impermissibly offered only an aggregate amount to

both Plaintiffs jointly, thereby depriving each of the Plaintiffs of the ability to

independently evaluate and accept or reject the proposal.

The trial court granted Security First’s motion. In its order, the trial court

found that the Florida Supreme Court’s holding in Gorka – that a joint proposal for

settlement made to multiple plaintiffs that does not allow each plaintiff to

independently accept the offer is invalid – had an exception for cases in which the

multiple plaintiffs have a close personal or financial relationship. The trial court

reasoned that since the Plaintiffs owned their home jointly as husband and wife, had

a close personal and financial relationship, and had one unified claim for breach of

contract against Security First, they fell within this supposed exception. The

Plaintiffs filed a motion for rehearing, which the trial court denied. The parties then

stipulated to the amount of reasonable attorneys’ fees and costs incurred by Security

First, and the trial court entered an agreed final judgment. The Plaintiffs explicitly

limited their stipulation to the amount of Security First’s fees and costs and

maintained their objection to Security First’s entitlement to recover fees and costs

pursuant to the proposal for settlement. This appeal followed.

4 Analysis

Proposals for settlement and offers of judgment are governed by Section

768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442.1 “[S]ection

768.79 generally creates a right to recover reasonable costs and attorney fees when

a party has satisfied the terms of the statute and rule.” Gorka, 36 So. 3d at 649. “It

provides a sanction against a party who unreasonably rejects a settlement offer.” Id.

“Florida Rule of Civil Procedure 1.442 provides the method and means of

implementing this right by outlining the required form and content of a proposal for

settlement.” Id. When a proposal for settlement that complies with Section 768.79

and Rule 1.442 is rejected by the party to whom it is offered, an award of attorneys’

fees is mandatory. Anderson v. Hilton Hotels Corp., 202 So. 3d 846, 856 (Fla. 2016).

However, a proposal for settlement “must strictly conform to these statutory and

procedural requirements to entitle the offeror to attorneys’ fees because the statute

is in derogation of the common law that ordinarily requires each party to pay its own

attorneys’ fees.” Id. at 852; see also Pacheco v. Gonzalez, 254 So. 3d 527, 531 (Fla.

3d DCA 2018) (“The Florida Supreme Court has made clear that Florida courts must

strictly construe the statute and the rule as they are in derogation of the common law

1 While Section 768.79 uses the term “offer of judgment” to refer specifically to a settlement offer made pursuant to the statute by a defendant to a plaintiff or plaintiffs, Rule 1.442 refers to settlement offers made by either a plaintiff or a defendant pursuant to the rule as a “proposal for settlement.” This opinion will use the term “proposal for settlement”. 5 rule that each party pay its own fees.” (quoting Willis Shaw Express, Inc. v. Hilyer

Sod, Inc., 849 So. 2d 276, 278 (Fla. 2003) (internal quotations omitted))).

“[P]roposals for settlements made under the rule and statute must be sufficiently

clear and definite to allow the offeree to make an informed decision without needing

clarification.” Pacheco, 254 So. 3d at 531 (quoting State Farm Mut. Auto. Ins. Co.

v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006) (internal quotations omitted)). “Any

drafting deficiencies will be construed against the drafter.” Pacheco, 254 So. 3d at

531 (quoting Paduru v. Klinkenberg, 157 So. 3d 314, 318 (Fla. 1st DCA 2014)

(internal alterations omitted)).

In Gorka, the Florida Supreme Court expressly held that a joint proposal for

settlement made by a defendant to multiple plaintiffs that does not allow each of the

plaintiffs to independently accept or reject the proposal is invalid and unenforceable.

36 So. 3d at 651-52. The trial court’s belief that the holding of Gorka contains an

exception for cases in which the multiple plaintiffs to whom the offer is made have

a close personal or financial relationship was simply wrong. Indeed, Gorka itself

concerned plaintiffs that were husband and wife pursuing a single joint claim, and

the Florida Supreme Court held that the defendant’s joint proposal for settlement

6 served on the married plaintiffs that did not give each of the plaintiffs the

independent ability to accept or reject the proposal was invalid.2

The plaintiffs in Gorka brought a single joint claim against their insurance

company. Id. at 647-48. Before trial, the insurance company served a proposal for

settlement on the plaintiffs which offered each plaintiff $12,500 to settle the claims.

Id. at 648. However, the offer explicitly stated:

This offer is conditioned upon the offer being accepted by both [plaintiffs]. In other words, the offer can only be accepted if both [plaintiffs] accept and neither Plaintiff can independently accept the offer without their co-plaintiff joining in the settlement. Id. (emphasis omitted). After the insurance company prevailed at trial, it filed a

motion for attorneys’ fees and costs pursuant to the proposal for settlement. Id. After

both the trial court and the Second District concluded that the proposal for settlement

was invalid and unenforceable, the insurance company appealed to the Florida

Supreme Court. Id.

In its decision, the Florida Supreme Court framed the question presented as

“whether a joint offer of settlement or judgment that is conditioned on the mutual

acceptance of all of the joint offerees is valid and enforceable.” Id. at 649. In

2 While the Florida Supreme Court’s decision in Gorka simply stated that the plaintiffs had a “personal relationship,” 36 So. 3d at 652, the decision of the Second District that the Florida Supreme Court was reviewing made clear that the plaintiffs were husband and wife. Attorneys’ Title Ins. Fund, Inc. v. Gorka, 989 So. 2d 1210, 1211 (Fla. 2d DCA 2008), approved, 36 So. 3d 646 (Fla. 2010).

7 answering this question, the Court expressly stated, “We . . . hold that this type of

joint offer is invalid and unenforceable because it is conditioned such that neither

offeree can independently evaluate or settle his or her respective claim by accepting

the proposal.” Id. at 647.

As support for its holding, the Court recounted its prior jurisprudence

concerning Section 768.79 and Rule 1.442 and then summarized the relevant

principles to be drawn from its jurisprudence as follows:

In these cases, we have drawn from the plain language of rule 1.442 the principle that to be valid and enforceable a joint offer must (1) state the amount and terms attributable to each party, and (2) state with particularity any relevant conditions. See Fla. R. Civ. P. 1.442(c)(3). A review of our precedent reveals that this principle inherently requires that an offer of judgment must be structured such that either offeree can independently evaluate and settle his or her respective claim by accepting the proposal irrespective of the other parties’ decisions. Otherwise, a party’s exposure to potential consequences from the litigation would be dependently interlocked with the decision of the other offerees. Id. at 650.

Thus, “when a plaintiff serves a proposal of settlement to multiple defendants,

each defendant is entitled to evaluate the proposal and should be able to settle the

suit knowing the extent of his or her financial responsibility.” Id. at 651 (quoting

Gorka, 989 So. 2d at 1213). “Conversely, a defendant must differentiate an offer of

judgment or a proposal of settlement to multiple plaintiffs such that each party can

independently evaluate and act upon the offer or proposal.” Gorka, 36 So. 3d at 651.

8 “[A] proposal that conditions acceptance upon the mutual agreement of both parties

and prohibits either party from independently evaluating and accepting the amount

offered violates these principles.” Id.

Importantly, while the Florida Supreme Court did discuss in its opinion

plaintiffs that have a “close personal or financial relationship,” it did so to note that

while the plaintiffs in Gorka had a close personal relationship, the rule the Court

announced was not limited to situations in which the parties to whom a joint offer is

made have a close relationship. Id. at 652. The Court stated: “[A]lthough the current

case involves only two plaintiffs with a personal relationship, the rule equally applies

to scenarios with multiple parties absent a close personal or financial relationship.”

Id. Thus, the Florida Supreme Court made clear that its decision applied both when

the parties to whom a joint offer is made have a close personal relationship and when

they do not. The Court did not carve out any exception to its holding and it certainly

did not create an exception for parties that have a close personal relationship exactly

like the relationship the plaintiffs in Gorka had.

Lastly, while the proposal for settlement at issue in Gorka explicitly stated

that the “offer is conditioned upon the offer being accepted by both [plaintiffs],” id.

at 648, the reasoning the Court employed makes clear that a proposal for settlement

is invalid if is structured such that neither plaintiff can independently accept the

proposal, even it does not contain explicit language stating that neither plaintiff can

9 independently accept the offer. The Court stated that “an offer of judgment must be

structured such that either offeree can independently evaluate and settle his or her

respective claim by accepting the proposal irrespective of the other parties’

decisions.” Id. at 650. The Court also stated that “a defendant must differentiate an

offer of judgment or a proposal of settlement to multiple plaintiffs such that each

party can independently evaluate and act upon the offer or proposal.” Id. at 651. And

indeed, in keeping with the Court’s stated reasoning, “the rule set forth in Gorka that

a joint proposal for settlement must be structured such that each offeree can

independently evaluate and settle his or her respective claim irrespective of any other

offeree’s decision has been applied in the absence of language expressly requiring

mutual acceptance.” Atl. Civil, Inc. v. Swift, 271 So. 3d 21, 25 (Fla. 3d DCA 2018)

(citing Pacheco, 254 So. 3d 534 n.6 (“[W]e find no logical basis to prevent Gorka

from applying to proposals for settlement where the text, though not explicitly

requiring mutual acceptance, clearly prevents either offeree from independently

evaluating the settlement offer.”); Chastain v. Chastain, 119 So. 3d 547, 550 (Fla.

1st DCA 2013) (applying Gorka to invalidate a proposal for settlement that “did not

expressly require joint acceptance,” but was “clear . . . that there was one offer in the

amount of $5,002 and that the offer . . . was conditioned on joint acceptance”);

Schantz v. Sekine, 60 So. 3d 444, 446 (Fla. 1st DCA 2011) (finding proposal for

settlement invalid under Gorka where “[a]lthough not as direct as the wording of the

10 settlement offer in Gorka, the . . . language [stating that ‘Plaintiffs shall execute a

general release’ and that the proposal ‘shall be deemed rejected by the Plaintiffs’ if

not accepted] . . . conditions settlement on Appellants’ mutual acceptance of the

offer and joint action in accordance with its terms”)).

Turning to the proposal for settlement made by Security First in this case, we

review the trial court’s order granting Security First’s entitlement to attorneys’ fees

and costs de novo. See Pratt v. Weiss, 161 So. 3d 1268, 1271 (Fla. 2015) (“The

eligibility to receive attorney’s fees and costs pursuant to section 768.79 and rule

1.442 is reviewed de novo.”). Applying the Florida Supreme Court’s holding in

Gorka, it is clear that Security First’s proposal for settlement was invalid and

unenforceable. While the proposal did not explicitly state that neither plaintiff could

accept the proposal independently, it was structured such that that was the case. The

proposal offered one single, aggregate amount to both Plaintiffs; it did not apportion

separate amounts for each Plaintiff. If accepted, the proposal required both Plaintiffs

to file a notice of voluntary dismissal. The proposal also stated that “[f]ailure by

Plaintiffs to timely accept this Proposal for Settlement shall constitute a rejection of

this Proposal for Settlement.” (emphasis added). Because the proposal was

11 structured such that it could only be accepted by both Plaintiffs jointly, it was invalid

and enforceable under Gorka.3

Conclusion

In his dissent in Gorka, Justice Polston warned that the majority opinion

“effectively eliminates the ability to make joint offers” despite the fact that such

offers are expressly permitted by Rule 1.442. 36 So. 3d at 654 (Polston, J.,

dissenting). Since the opinion was released, the First District has stated its belief

that Justice Polston was correct. Schantz, 60 So. 3d at 446. In cases applying Gorka,

the Third District has twice cautioned attorneys in that district to avoid joint

proposals lest their proposal for settlement ultimately be found invalid. Atl. Civil,

271 So. 3d at 26; Pacheco, 254 So. 3d at 535. While the criticism of Gorka has been

substantial, we are nonetheless bound to follow it.

Security First’s proposal for settlement was invalid and unenforceable under

Gorka. The trial court’s final judgment awarding attorneys’ fees and costs to

Security First is reversed, and this case is remanded to the trial court with instructions

3 We note that in 2022, the Legislature amended Section 768.79 to supersede the holding of Gorka in the property insurance context. The Legislature added now subsection (6), which states, “For a breach of contract action, a property insurer may make a joint offer of judgment or settlement that is conditioned on the mutual acceptance of all the joint offerees.” However, Security First concedes in its Answer Brief that the amended statute does not apply retroactively to its proposal for settlement that was made in 2020. 12 to deny Security First’s Motion for Determination of Entitlement to Fees and Costs

Pursuant to Florida Statutes § 768.79.

REVERSED and REMANDED with instructions.

NARDELLA and WHITE, JJ., concur.

Erin M. Berger and Melissa A. Giasi, of Giasi Law, P.A., Tampa, for Appellants.

Loreyn P. Raab and Michael Fox Orr, of Orr | Cook, Jacksonville, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED