Suarez Trucking Fl Corp. v. Adam J. Souders

• Court: Supreme Court of Florida
• Decided: October 20, 2022
• Docket: SC21-369
• Status: Published

Opinion

Supreme Court of Florida ____________

No. SC21-369 ____________

SUAREZ TRUCKING FL CORP., et al., Petitioners,

vs.

ADAM J. SOUDERS, et al., Respondents.

October 20, 2022

PER CURIAM.

This case presents the question whether a binding settlement

agreement was formed pursuant to the provisions of section 768.79,

Florida Statutes (2014), Florida’s offer of judgment and demand for

judgment statute, when the defendant in a tort action, Suarez

Trucking, filed a written notice accepting an offer of settlement

made by the plaintiff, Adam Souders. In Suarez Trucking FL Corp.

v. Souders, 311 So. 3d 263, 272 (Fla. 2d DCA 2020), the Second

District Court of Appeal affirmed the trial court’s order denying

Suarez Trucking’s motion to enforce settlement agreement, holding that the written notice of acceptance was not sufficient to form a

binding contract and that the settlement check tendered pursuant

to the offer of settlement was deficient because it included as a

payee—along with Souders and his counsel—the carrier holding a

workers’ compensation lien created by operation of section 440.39,

Florida Statutes (2014).

The Second District’s decision is in express and direct conflict

with the decision of the Fourth District Court of Appeal in Cirrus

Design Corp. v. Sasso, 95 So. 3d 308, 312 (Fla. 4th DCA 2012),

which held that the filed acceptance of an offer under the offer of

judgment and demand for judgment statute resulted in the

formation of a substituted agreement and that performance thus

was not necessary to the formation of the settlement contract. We

therefore have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

On the conflict issue—whether a settlement contract was

formed—the framework of offer and acceptance established by

section 768.79 as well as basic contract principles support the

conclusion that the Second District erred in holding that no

contract was formed. On this point, as Judge Atkinson explains in

his cogent dissent, the district court majority erroneously conflates

-2- acceptance with performance and errs in its understanding of what

is required to manifest acceptance of an offer inviting a promissory

acceptance.

We decline to go beyond the conflict issue to address whether

Suarez Trucking—by tendering the settlement check to Souders

with the workers’ compensation lienor named as a payee—breached

the settlement agreement. Because of their focus on the issue of

contract formation, the parties have never fully argued issues

related to breach and remedy. Those issues should be resolved on

remand, uninfluenced by the erroneous view of contract formation

adopted by the Second District.

I.

Section 768.79(4) provides: “An offer shall be accepted by filing

a written acceptance with the court within 30 days after service.

Upon filing of both the offer and acceptance, the court has full

jurisdiction to enforce the settlement agreement.” Subsection (5) of

the statute provides that “[a]n offer may be withdrawn in writing

which is served before the date a written acceptance is filed” and

that “[o]nce withdrawn, an offer is void.” A related rule provision

found in Florida Rule of Civil Procedure 1.442(f)(1) states that in

-3- connection with an offer and acceptance under section 768.79(4),

“[n]o oral communications shall constitute an acceptance, rejection,

or counteroffer.”

This framework recognizes a simple and straightforward

process in which after a written offer is made under the statute, if

an acceptance of that offer is timely filed, an enforceable settlement

agreement is thereby created. The framework contemplates that a

filed acceptance constitutes a promise to perform in accordance

with the terms of the offer. Given the statute’s requirement that an

offer and any acceptance be written, oral discussions surrounding

the offer and acceptance are—as rule 1.442(f)(1) makes clear—of no

consequence to the formation of a contract. Once a proper

acceptance—that is, an unqualified acceptance—is filed as specified

in the statute, that’s it: a settlement contract has been entered to

resolve the litigation. All that remains is for performance of the

settlement terms to be carried out. This is the framework

established by the statute, and parties desiring to obtain the

potential benefit afforded by the statute are bound to operate within

its parameters.

-4- Here, the offer of settlement made by plaintiff Souders on

February 25, 2015, expressly pursuant to section 768.79 and rule

1.442, provided that the defendants “shall pay $500,000.00 to the

Plaintiff . . . within ten (10) days from the date of acceptance.” The

offer also contained the condition that “[u]pon acceptance and

payment of the Proposal for Settlement, Plaintiff . . . will enter

dismissal with prejudice against Defendants.” In response, on

March 26, 2015, Suarez Trucking filed a notice of acceptance

stating simply that “pursuant to Florida Statutes 769.89 and

Florida Rule 1.442 [notice is given] that Defendants accept Plaintiff’s

Proposal for Settlement made to Defendants, dated February 25,

2015.” (Emphasis added.) This notice of acceptance created a

binding settlement contract by unequivocally and fully assenting to

the terms of the offer. It is hard to imagine a form of acceptance

that could be more clear or more effective.

II.

Avoiding this reality, the Second District invokes and

misapplies “the strict common-law rule applicable to offers

generally—the so-called ‘mirror image’ rule that generally requires

the acceptance to be in every respect identical to the offer.”

-5- 16 Richard A. Lord, Williston on Contracts § 49:40 (4th ed. 2014).

The Second District denigrates Suarez Trucking’s acceptance as

ineffectual “boilerplate” that “lacked specificity,” holding that under

the mirror-image rule, Suarez Trucking could only manifest its

acceptance of the offer by reciting back the terms of the offer.

Suarez Trucking, 311 So. 3d at 269. In support of this conclusion,

the Second District cites not a single case in which the mirror-

image rule has been applied in a similar way.

The Second District, in a view adopted by the dissent, also

erroneously sets up a dichotomy between the operation of section

768.79 together with rule 1.442 and the formation of a binding

settlement contract, asserting that, as the dissent says, the statute

and rule do not “specif[y] the requirements for formation of the

settlement agreement itself.” Dissenting op. at 1.

Pointing to oral communications between the parties, the

Second District—once again echoed by the dissent—raises the

specter that recognizing the formation of a contract between the

parties here would somehow allow unilateral alteration of the terms

of the settlement. See Suarez Trucking, 311 So. 3d at 271;

dissenting op. at 7. The Second District also erroneously contends

-6- that the offer of settlement could only be accepted by performance—

rather than by a promissory acceptance. See Suarez Trucking, 311

So. 3d at 269.

None of these positions can be reconciled either with the

provisions of the statute or with general rules of contract law.

III.

Basic contract law has long established that “[i]n order to

create a contract, it is essential that there should be a reciprocal

assent” to the contract terms. Strong & Trowbridge Co. v. H. Baars

& Co., 54 So. 92, 93 (Fla. 1910). The “assent must be precisely [to]

the same thing.” Id. That is, the acceptance must mirror the offer.

“Consequently, if one assents to a certain thing and the other

assents to it only with modifications . . . no agreement or contract

arises therefrom.” Id. We have said that “in determining whether

there has been a mutual consent to a contract,”

[t]he rule is probably best expressed by the late Justice Holmes in “The Path of the Law,” 10 Harvard Law Review 457, where it was stated in part that “The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs—not on the parties having meant the same thing but on their having said the same thing.”

-7- Gendzier v. Bielecki, 97 So. 2d 604, 608 (Fla. 1957). 1 There must

therefore be an objective manifestation by both parties of assent to

the same terms. This is a rule of consistency. It is not—as the

Second District would have it—a rule of regurgitation.

The “general rule at common law” is simply “that [an]

acceptance must comply with [the] terms of [the] offer”:

If a promise is requested, that promise must be made absolutely and unqualifiedly. This does not necessarily mean that the precise words of the requested promise must be repeated, but rather that, by a positive and unqualified assent to the proposal, the offeree must in effect agree to make precisely the promise requested.

2 Lord, Williston on Contracts § 6:11 (4th ed. 2007) (emphasis

added).

Here, the promise made by Suarez Trucking in the filed notice

of acceptance was “made absolutely and unqualifiedly,” and Suarez

Trucking “agreed to make precisely the promise requested.” It was

of no consequence that “the precise words of the requested promise”

were not repeated. The filed acceptance constituted “a positive and

unqualified assent to the proposal” of settlement. That’s what the

1. The common law rule has been modified with respect to transactions in goods. See § 672.207, Fla. Stat. (2021).

-8- law requires for an acceptance to be effective. See Hanson v.

Maxfield, 23 So. 3d 736, 739 (Fla. 1st DCA 2009) (“The May 13

letter, written on behalf of the Hansons, states that it ‘accepts your

settlement offer made on behalf of your clients in your April 15,

2005, letter.’ Thus, the May 13 letter is an unequivocal and

unconditional acceptance of the offer made in the April 15 letter.”);

see also Restatement (Second) of Contracts § 30, illus. 3 (Am. Law

Inst. 1981) (“A orally offers to sell and deliver to B 100 tons of coal

at $20 a ton payable 30 days after delivery. B replies, “I accept

your offer.” B has manifested assent in a sufficient form . . . .”); id.

§ 32, illus. 5 (“A mails a written order to B, offering to buy specified

machinery on specified terms. The order provides, ‘Ship at once.’ B

immediately mails a letter to A, saying ‘I accept your offer and will

ship at once.’ This is a sufficient acceptance to form a contract.”).

Nothing in section 768.79 or rule 1.442 is at odds with these

basic rules of contract law regarding offer and acceptance and

mutual assent. Indeed, the statute and rule operate against the

backdrop of those legal principles. When the statute refers to

“offer” and “acceptance,” the statute speaks the language of

contract. But the statute—as implemented by the rule—specifies a

-9- particular mode for the offer and acceptance: both must be written.

Accepting the position that a valid offer and acceptance under the

statute do not necessarily result in an enforceable settlement

contract would unnecessarily inject incoherence into the law.

In line with the purpose of establishing a clear-cut basis for

the imposition of sanctions on a litigant who rejects a settlement

proposal in the circumstances specified in the statute, the statutory

framework does not envision a process of negotiation regarding

settlement terms. On the contrary, it authorizes settlement

proposals that are by their very nature take-it-or-leave-it

propositions. The statutorily required written offer and acceptance

are not affected by other communications between the litigants.

That understanding of the operation of the statute is clearly

reflected in the provision of rule 1.442(f)(1) that “[n]o oral

communications shall constitute an acceptance, rejection, or

counteroffer.”

The focus of the Second District and the dissent on such

communications between the parties here flows from a serious

misconception regarding settlements pursuant to the statute. This

is illustrated by Scope v. Fannelli, 639 So. 2d 141 (Fla. 5th DCA

- 10 - 1994), in which the court rejected a claim that a counteroffer had

terminated an offer made under section 768.79. In rejecting that

claim, the court reasoned that subsection (5) of the statute permits

an offeror to withdraw an offer in writing with service effected before

an acceptance is filed, but that “[n]o alternative method of reducing

the time for acceptance is provided by the statute.” Scope, 639 So.

2d at 143. Accordingly, regardless of communications between the

parties concerning the offer, absent a withdrawal of the offer in

accordance with the statutory provisions, the offer will remain open

until the statutory 30-day offer period has passed. From this

holding it follows that—whatever may have passed between the

parties—an acceptance filed in accordance with the statute before

an offer has either been withdrawn or expired will be effective to

create a settlement contract based on the terms of the offer.

So when a settlement offer is made under the statute, the

process must play out according to the requirements of the statute

and rule. Of course, the parties are always free to negotiate and

enter a settlement on any basis to which they mutually assent.

Such a negotiating process undertaken outside the statutory

- 11 - framework obviously is not subject to the requirements or benefits

of the statute and rule.

There is no support for the claim that recognizing the

existence of a contract here authorizes the accepting party to

unilaterally alter the contract. To the extent that such a claim

points to issues concerning whether a breach of the settlement

contract occurred, the matter is beyond the scope of the conflict

issue, and we do not address it here.

Finally, the Second District’s contention that the offer made by

Souders contemplated that acceptance could only be effected by

performance is refuted by the plain terms of the offer. The Second

District rests its position on this issue on the reference in the

settlement offer to “acceptance and payment.” Suarez Trucking, 311

So. 3d at 270. But this language—understood in context—indicates

exactly the opposite of what the Second District says it means. The

settlement offer makes a clear distinction between acceptance and

performance rather than equating acceptance with performance.

This is shown most vividly in the specification that performance by

payment must occur within ten days from the date of acceptance.

The offer thus clearly contemplates a two-step process in which

- 12 - acceptance is followed by performance. This, of course, is

consistent with the statute, which provides for acceptance by the

filing of a notice of acceptance rather than acceptance by

performance.

IV.

There is no basis to support the Second District’s conclusion

that a settlement contract could only be formed by performance or

that Suarez Trucking’s acceptance was otherwise defective. We

therefore quash the decision on review. And we approve the conflict

decision in Cirrus to the extent that it is consistent with our

analysis here.

It is so ordered.

MUÑIZ, C.J., and CANADY, POLSTON, COURIEL, and GROSSHANS, JJ., concur. CANADY, J., concurs with an opinion, in which POLSTON, J., concurs. LABARGA, J., dissents with an opinion. FRANCIS, J., did not participate.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

CANADY, J., concurring.

Although I do not dissent from the majority’s conclusion that

fuller briefing of the issues related to breach and remedy is

- 13 - appropriate, based on what has been presented thus far by the

parties it appears doubtful to me that any breach of the settlement

agreement occurred. And it must be acknowledged that the

resolution of the breach issue has serious implications for the

integrity of the legal framework for the protection of statutory

workers’ compensation liens.

Under the Workers’ Compensation Law, an employee injured

in the course of employment by a third-party tortfeasor may accept

workers’ compensation benefits and also sue the third-party

tortfeasor. § 440.39(1), Fla. Stat. (2021). In such circumstances,

the employee “shall sue for the employee individually and for the

use and benefit of the employer, if a self-insurer, or employer’s

insurance carrier.” § 440.39(3)(a), Fla. Stat. Under the statute, the

employer or carrier obtains lien rights:

Upon suit being filed, the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his or her dependents, which notice shall constitute a lien upon any judgment or settlement recovered to the extent that the court may determine to be their pro rata share for compensation and medical benefits paid or to be paid under the provisions of this law, less their pro rata share of all court costs expended by the plaintiff in the prosecution of the suit including reasonable attorney’s fees for the plaintiff’s attorney.

- 14 - Id.

The statute thus provides for the judicial determination of the

amount recoverable under such workers’ compensation liens. Id.

Specific provision is made regarding settled third-party tort claims:

If the employer or insurance carrier has given written notice of his or her rights of subrogation to the third- party tortfeasor, and, thereafter, settlement of any such claim or action at law is made, either before or after suit is filed, and the parties fail to agree on the proportion to be paid to each, the circuit court of the county in which the cause of action arose shall determine the amount to be paid to each by such third-party tortfeasor . . . .

§ 440.39(3)(b), Fla. Stat.

The Second District itself has recognized that under these

provisions of the statute, in the event of a dispute on the question,

an employee’s “right to the distribution of any portion of his third-

party settlement did not arise until the trial court determined the

amount of the [workers’ compensation] lien.” City of Tampa v.

Norton, 681 So. 2d 811, 812 (Fla. 2d DCA 1996); see also Circle K

Corp./AIG Claims Servs., Inc. v. Webster, 747 So. 2d 1010, 1011

(Fla. 5th DCA 1999) (“Where a case is settled in lieu of suit or

during the pendency of a suit and the tortfeasor has notice of the

employer’s interest in the settlement, the case should not be settled

- 15 - without the consent of the carrier or employer in order to protect

the employer to the extent of benefits conferred.”).

It is undisputed that the parties here were subject to the

provisions of section 440.39 and that they were on notice of the

carrier’s lien rights. Indeed, Souders said this in his brief

submitted to the Second District:

[T]he record reflects that, both before and after the plaintiff’s offer was made, plaintiff’s counsel had advised Suarez Trucking’s counsel that his client had a statutory obligation to satisfy the compensation carrier’s lien; that he fully intended to do so in accordance with Florida law; and that he had been actively involved in negotiating the amount of the lien with counsel for the compensation carrier . . . .

In line with this statute and the acknowledgement of lien rights by

Souders, Suarez Trucking now argues that it simply did what “is

customary when faced with a lienholder: it included that lienholder

on the settlement check.” Suarez Trucking further argues that

under section 440.39 if it “failed to include [the workers’

compensation carrier] on the settlement check and protect the lien,

it could have faced a cause of action for impairment of lien or for

subrogation.”

- 16 - In support of these points, Suarez Trucking cites cases

recognizing the duty of settling parties to protect lien rights. See,

e.g., Hall, Lamb & Hall, P.A. v. Sherlon Invs. Corp., 7 So. 3d 639, 641

(Fla. 3d DCA 2009) (“There is no question that as a party to the

settlement, Sherlon had an affirmative duty to notify the law firm of

the settlement and to protect the law firm’s lien interest in the

settlement proceeds.”); Dade County v. Pavon, 266 So. 2d 94, 97

(Fla. 3d DCA 1972) (“We hold that the statute placed upon the

appellee a duty to make no settlement until the possible existence

of a hospital lien was determined.”); see also Geico Gen. Ins. Co. v.

Steinger, Iscoe & Greene-II, P.A., 275 So. 3d 775, 777 (Fla. 3d DCA

2019) (holding that insurer had a “duty to protect [law firm’s]

attorney’s lien by notifying [law firm] of the settlement, including

[the law firm] on the settlement check or obtaining [law firm’s]

waiver of its lien in writing, or obtaining a Hold Harmless agreement

from [firm receiving settlement proceeds]”). To the extent that

Suarez Trucking can establish the existence of such a duty arising

from section 440.39, it appears that analysis of the breach of

contract issue should take that statute-based duty into account.

- 17 - The relevance of background legal requirements to the

obligations of contracting parties is by no means a novel concept in

our law. “Florida courts have long recognized that the statutory

limitations and requirements surrounding traditional insurance

contracts may be incorporated into an insurance contract for

purposes of determining the parties’ contractual rights.” Found.

Health v. Westside EKG Assocs., 944 So. 2d 188, 195 (Fla. 2006).

The issue of statutory incorporation has arisen most frequently in

the insurance context, but our treatment of the incorporation of

statutory provisions in that context is based on a more sweeping

principle of statutory incorporation. We have held broadly that

in construing a contract, it is well established that “the laws existing at the time and place of the making of the contract and where it is to be performed which may affect its validity, construction, discharge and enforcement, enter into and become a part of the contract as if they were expressly referred to or actually copied or incorporated therein.”

City of Homestead v. Beard, 600 So. 2d 450, 454-55 (Fla. 1992)

(quoting Shavers v. Duval County, 73 So. 2d 684, 689 (Fla. 1954)).

This principle of contract law is indeed venerable and widely

acknowledged. See Von Hoffman v. City of Quincy, 71 U.S. 535, 550

(1866) (“It is also settled that the laws which subsist at the time and

- 18 - place of the making of a contract, and where it is to be performed,

enter into and form a part of it, as if they were expressly referred to

or incorporated in its terms. This principle embraces alike those

which affect its validity, construction, discharge, and

enforcement. . . . These are as much incidents and conditions of the

contract as if they rested upon the basis of a distinct agreement.”);

Richard A. Lord, Williston on Contracts § 30:19 (4th ed. 2012)

(“Under [the generally applicable] presumption of incorporation,

valid applicable laws existing at the time of the making of a contract

enter into and form a part of the contract as fully as if expressly

incorporated in the contract. Thus, contractual language must be

interpreted in light of existing law, the provisions of which are

regarded as implied terms of the contract, regardless of whether the

agreement refers to the governing law.” (footnotes omitted.)).

As Souders admits, the parties here were subject to the

provisions of section 440.39. Souders was required by law to bring

his third-party tort claim not only for his own benefit, but also for

“the use and benefit” of the workers’ compensation carrier. He was

not entitled to the disbursement of funds paid in settlement of his

claim prior to an agreed or judicially determined resolution of the

- 19 - workers’ compensation lien. The settlement funds provided to

Souders indisputably were legally encumbered by the lien.

When the contract is understood in light of these existing

relationships and obligations, as is required by the well-established

rule of incorporation, it is hard to see how Suarez Trucking’s tender

of the settlement check with the workers’ compensation carrier

named as a payee could be a breach—much less a material

breach—of the settlement agreement. The tender of the check in

that form simply acknowledged binding legal obligations that the

parties to the settlement necessarily understood to exist and that

they were expressly committed to honoring.

The autonomy of contracting parties is not compromised by

the presumption that the contractual obligations they undertake

are informed by and subject to legal obligations arising from the

laws that exist when the contract is entered. And it is hard to

fathom how a breach of contract can arise from action by a party—

similar to the action by Suarez Trucking here—to require that the

performance of contractual obligations be in harmony with such

laws.

POLSTON, J., concurs.

- 20 - LABARGA, J., dissenting.

I agree with the majority that the Second District improperly

applied the “mirror image” rule in determining the enforceability of

the settlement agreement in this case. However, I ultimately agree

with the district court that the parties’ failure to reach a meeting of

the minds as to a material term rendered the settlement agreement

unenforceable. Consequently, I dissent.

Relying on a terse application of section 768.79, Florida

Statutes (2014), and Florida Rule of Civil Procedure 1.442, the

majority concludes that petitioner Suarez Trucking (Suarez) and

respondent Souders formed a binding settlement agreement.

Section 768.79 and rule 1.442 contain the requirements for court

approval and enforcement of a settlement agreement, but neither

specifies the requirements for formation of the settlement

agreement itself. A court’s authority to ratify a settlement

agreement and enter a judgment accordingly is distinct from the

formation of the settlement agreement. See Wright v. Caruana, 640

So. 2d 197, 198 (Fla. 3d DCA 1994) (“[Section 768.79(1)] does not

prevent an offeree from actually accepting an untimely offer and

avoiding trial; it merely prevents the offer from later serving as the

- 21 - basis for an award of costs and attorney’s fees under the statute.”);

Gallagher v. Dupont, 918 So. 2d 342, 347 (Fla. 5th DCA 2005) (“A

consent judgment is a judicially approved contract . . . .”); Mady v.

DaimlerChrysler Corp., 59 So. 3d 1129, 1133 (Fla. 2011) (“A

resolution reached pursuant to the offer of judgment statute, as

opposed to an extrajudicial settlement agreement that is not subject

to judicial enforcement bears the imprimatur of a court. . . .”). The

former is governed by the statute and rule, and the latter is

governed by general contract law.

Even though the parties may have adhered to the procedural

requirements set forth in section 768.79 and rule 1.442, that is

only part of the analysis. The parties’ adherence to those

requirements is—and must be—secondary to whether a valid

settlement agreement exists.

A settlement agreement, like all other contracts, is formed

when there is mutual assent and a meeting of the minds, which

requires an offer and an acceptance supported by valid

consideration. See Robbie v. City of Miami, 469 So. 2d 1384, 1385

(Fla. 1985); Perkins v. Simmons, 15 So. 2d 289, 290 (Fla. 1943); see

also Pena v. Fox, 198 So. 3d 61, 63 (Fla. 2d DCA 2015). If an

- 22 - offeree’s acceptance deviates from an offer’s essential terms, it is

not an acceptance but is instead a counteroffer that rejects the

original offer. Strong & Trowbridge Co. v. H. Baars & Co., 54 So. 92,

93-94 (Fla. 1910); see Breger v. Robshaw Custom Homes, Inc., 264

So. 3d 1147, 1150 (Fla. 5th DCA 2019). If the parties are still

negotiating the essential terms of the contract, there is no meeting

of the minds. See Webster Lumber Co. v. Lincoln, 115 So. 498 (Fla.

1927); see also de Vaux v. Westwood Baptist Church, 953 So. 2d

677, 681 (Fla. 1st DCA 2007).

Here, because there was no meeting of the minds as to all of

the material terms, no settlement agreement was formed. In

arriving at its conclusion that a valid contract was formed when

Suarez filed a written notice accepting Souders’ settlement offer, the

majority glossed over a significant factual component that impeded

such a conclusion under contract law: After Souders made his

initial offer, Suarez’s counsel contacted Souders’ counsel and asked

that the settlement agreement provide that the lien issued by the

workers’ compensation carrier (Guarantee Insurance Company) be

paid from the proceeds of the settlement check. Souders

- 23 - unequivocally refused the request. 2 Despite Souders’s refusal,

Suarez issued a settlement check that included Guarantee as a

payee and filed a notice of acceptance with the court. 3

In the context of contract negotiations, Suarez’s request to

include Guarantee on the settlement check constituted a

counteroffer which voided the initial offer and was ultimately

rejected by Souders. Thus, at the time the acceptance was filed,

there was no meeting of the minds as to who would be paid—

meaning that there was no binding settlement agreement. Even if

the request were not a counteroffer, Souders’ rejection and Suarez’s

subsequent inclusion of Guarantee as a payee evinces that the

parties were still negotiating who to include as payee, and thus,

2. The inclusion of the worker’s compensation carrier (Guarantee) as a payee on the settlement check would have required Souders to negotiate the amount of the lien with Guarantee before he could cash the settlement check—a step Souders clearly did not want to take at that time.

3. In the inverse situation, where the parties have not met the requirements of section 768.79 and rule 1.442, but have met the common law requirements for contract formation, the parties would be unable to exercise the benefits of the statute, but would still have an extrajudicial private settlement contract enforceable as a matter of contract law.

- 24 - there was no meeting of the minds. Therefore, there was no

contract formation.

In determining that the parties formed a binding settlement

agreement upon Suarez’s notice of acceptance, the majority notes

that “[t]he [section 768.79 and rule 1.442] framework contemplates

that a filed acceptance constitutes a promise to perform in

accordance with the terms of the offer.” Majority op. at 4. However,

herein lies the problem in this case; there was no meeting of the

minds as to a material term of the offer—whether Guarantee should

be included as a payee on the settlement check. In short, the

parties did not agree as to who should be included in the settlement

check as a payee—a material term of the contract. 4 It would be a

rare circumstance indeed where the identity of the payee or payees

of a settlement check would not be considered a material term of

4. Although insurance carriers enjoy an automatic lien in a settlement with a third-party tortfeasor, the workers’ compensation statute clearly contemplates further negotiations and proceedings in the execution of the lien. See §§ 440.39(a)-(b), Fla. Stat. (2014). By including Guarantee on the check, Suarez effectively created a de facto lien that could affect those negotiations. With these consequences in mind, the payee on the check should be considered a material term of the settlement agreement.

- 25 - the settlement agreement, and without an agreement as to all of the

material terms of the offer, there can be no valid acceptance or

promise to perform in accordance with those terms. See Suarez

Trucking FL Corp. v. Souders, 311 So. 3d 263, 269 (“[T]he provisions

of section 768.79(4) . . . do not negate the fact that contract law

governs settlement agreements”) (citing Lunas v. Cooperativa de

Seguros Multiples de Puerto Rico, 100 So. 3d 239, 241 (Fla. 2d DCA

2012)). Thus, reliance on the statute/rule framework to determine

the enforceability of the parties’ settlement agreement is not as

“simple and straightforward” as the majority opinion suggests.

Majority op. at 4.

Notwithstanding the majority’s reliance on rule 1.442(f)(1),

which provides that “[n]o oral communications shall constitute an

acceptance, rejection, or counteroffer under the provisions of this

rule,” that provision only applies to the court’s authority to ratify

and enforce the settlement agreement. Neither it nor section

768.79 alters the requirements for the valid formation of the

settlement agreement:

By conferring jurisdiction to enforce an agreement upon the trial court only after both an offer and acceptance have been filed with the court, the statute prevents the

- 26 - trial court from enforcing an agreement based only on a party’s assertion that it accepted the offer. The statute does not, however, require the trial court to enforce a contract simply because a written acceptance has been filed. The trial court must still evaluate that acceptance as evidencing a meeting of the parties’ minds.

Suarez, 311 So. 3d at 269 (emphasis added). Although this

language was stated in the context of the Second District’s

erroneous “mirror image” rule analysis, the court’s understanding

of the statute is otherwise valid. Accordingly, rule 1.442(f)(1) does

not restrict a court from considering the communications between

Suarez and Souders in evaluating the enforceability of the

settlement agreement. Here, the parties’ communications illustrate

that there was no meeting of the minds and no formation of a

settlement agreement.

By prioritizing compliance with section 768.79 and rule 1.442

over the formation of a valid settlement agreement, the majority

risks minimizing the safeguards of contract law in favor of a purely

formalistic framework, and in turn, leaves open the possibility of

the troublesome scenario set forth in the Second District’s opinion:

Holding that the trial court should have granted that motion would allow offerees to file boilerplate notices of acceptance and subsequently alter the required performance as they see fit. But an offeror who complies

- 27 - with the strict requirements of the statute and the rule concerning proposals for settlement and offers of judgment should not be bound to comply with the terms of an agreement unilaterally created by the offeree simply because the offeree first filed a boilerplate notice of acceptance. Such a result is untenable.

Suarez, 311 So. 3d at 271. 5

For these reasons, I would hold that because there was no

meeting of the minds as to all of the terms of the settlement

agreement, and thus no contract formation, the settlement

agreement was unenforceable.

I respectfully dissent.

Application for Review of the Decision of the District Court of Appeal Direct Conflict of Decisions

Second District - Case No. 2D19-572

(Hillsborough County)

Kansas R. Gooden of Boyd & Jenerette, Miami, Florida, and Stuart J. Freeman of Freeman, Goldis & Cash, PA, St. Petersburg, Florida,

for Petitioner Suarez Trucking Fl Corp

Daniel A. Martinez and Jennifer C. Worden of Segundo Law Group, St. Petersburg, Florida,

5. This risk is especially relevant here, where the record reveals that after the offer and before acceptance, the parties disagreed as to whether the settlement agreement should include satisfaction of Guarantee’s lien from the settlement check.

- 28 - for Petitioner Progressive Express Insurance Company

Joel D. Eaton of Podhurst Orseck, P.A., Miami, Florida, and Chris M. Kavouklis of Brennan, Holden & Kavouklis, P.A., Tampa, Florida,

for Respondents

Thomas L. Hunker and V. Ashley Paxton of Hunker Appeals, Fort Lauderdale, Florida, and Elaine D. Walter of Boyd Richards Parker & Colonnelli, P.L., Miami, Florida,

for Amicus Curiae Florida Defense Lawyers Association

- 29 -