Sparklin v. Southern Indus. Associates

• Decision Date: 20 July 2007
• Docket Number: No. 5D06-913.,5D06-913.
• Citation: 960 So.2d 895
• Parties: Ronald Allen SPARKLIN, Appellant, v. SOUTHERN INDUSTRIAL ASSOCIATES, INC., Appellee.
• Court: Florida District Court of Appeals

960 So.2d 895

Ronald Allen SPARKLIN, Appellant, v. SOUTHERN INDUSTRIAL ASSOCIATES, INC., Appellee.

No. 5D06-913.

District Court of Appeal of Florida, Fifth District.

July 20, 2007.

Aaron Metcalf of Abbott Law Firm, P.A., Jacksonville, for Appellant.

John Bengier, Mitchell N. Silver, and George M. Meier, of Meier, Bonner, Muszynski, O'Dell Harvey, P.A., Orlando, for Appellee.

MONACO, J.

The appellant, Ronald Allen Sparklin, appeals the order of the trial court granting the motion of the appellee, Southern Industrial Associates, Inc., for attorney's fees and costs pursuant to the offer of judgment statute, section 768.79, Florida Statutes (2004). Because the offer contained ambiguous nonmonetary terms, we reverse.

Mr. Sparklin was injured when the bed of a dump truck owned by Tom Waltz fell on him. Tom Waltz had purchased the truck from Bartow Ford Company, who contracted with Southern Industrial to assemble the vehicle. Southern Industrial had purchased the hoist system for use in assembling the bed of the dump truck from Venco Manufacturing, Inc. Mr. Sparklin filed a multi-count complaint against all of the involved parties: Venco for strict liability for the defective design and manufacture of the hoist system and for simple negligence; Southern Industrial for strict liability for the inadequate and dangerous installation of the hoist, and for simple negligence in the installation of the hoist; Bartow Ford for strict liability for selling the truck in a defective condition and for simple negligence; and Waltz, Inc. and Tom Waltz, for negligence.

As the case progressed, Southern Industrial sent a proposal for settlement to Mr. Sparklin in which it offered him $150,000.00 for the "settlement of all claims of the Plaintiff RONALD ALLEN SPARKLIN ... that are, or may be, made by RONALD ALLEN SPARKLIN in the instant action in which this proposal is made and as alleged by the Plaintiff's pending complaint, or that could be raised by the Plaintiff as arising out of the incident, which is the subject of the Plaintiff's complaint." The proposal required as one of its conditions the execution by Mr. Sparklin of a release in the form that was attached to the proposal.

The "General Release" attached to the offer contained the following language concerning its width and breadth:

RONALD ALLEN SPARKLIN, hereby acknowledges receipt of payment to him of the sum of ONE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($150,000.00), which amount has been accepted in full compromise, settlement, and satisfaction of, and as sole consideration for this General Release, and also does hereby remise, release, acquit, relieve, and forever discharge SOUTHER [sic.] INDUSTRIAL ASSOCIATES and AUTO OWNERS INSURANCE COMPANY, and their past, present and future agents, servants, employees, officers, directors, shareholders, insurers, successors and assigns, and any persons, firms, or corporations in privity with any of them, of and from any and all manner of action and actions, suits, sums of money, trespasses, controversies, agreements, damages, losses, injuries, claims and demands whatsoever, including attorneys' fees, in law or in equity, whether direct or indirect, and including claims for contribution, indemnity, and subrogation, which the undersigned now has or may hereafter have, or which he his heirs, administrators, and executors can, shall, or may hereafter have, for all injuries, damages, and losses of any kind and character, both known and unknown, arising on account of or in any way relating to the accident on or about May 13, 2000, including all claims which were asserted or could have been asserted in [the subject lawsuit].

RONALD ALLEN SPARKLIN further agrees to remise, release, acquit, relieve, and forever discharge any person or entity and their past, present, and future agents, servants, employees, officers, directors, shareholders, insurers, successors and assigns from any and all claims based upon vicarious, derivative or technical liability for any act or omission on the part of Southern Industrial Associates.

Mr. Sparklin did not accept the offer, and in due time, it expired. Following a judgment in its favor, Southern Industrial moved for and was granted an award of attorney's fees. Mr. Sparklin appeals arguing that the offer was invalid because the proposal for settlement and release were ambiguous and overbroad. We review the order utilizing a de novo standard. See Ambeca, Inc. v. Marina Cove Village Townhome Ass'n, Inc., 880 So.2d 811, 812 (Fla. 1st DCA 2004).

Section 768.79, Florida Statutes (2004), authorizes the use of an offer of judgment or demand for judgment in any civil action for damages, and governs the procedures whereby attorney's fees may be awarded to the successful offering or demanding party. The statute is implemented by rule 1.442, Florida Rules of Civil Procedure, See Campbell v. Goldman, 959 So.2d 223 (Fla.2007); Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla.2003). While neither the statute, nor the rule specifically mention the use of a release in conjunction with an offer of judgment, they likewise do not prohibit them. Subsection (2)(D) of the rule, however, does require the offering party to "state the total amount of the proposal and state with particularity all nonmonetary terms of the proposal." Presumably, a release would fit within the definition of a nonmonetary term.

In this regard our sister court for the Fourth District has specifically noted that the "fact that Plaintiffs are required to release Defendant for all claims which had accrued as of the date of the Proposal for Settlement does not invalidate the Proposal for Settlement." See Bd. of Trustees of Fla. Atl. Univ. v. Bowman, 853 So.2d 507, 509 (Fla. 4th DCA 2003). This court has likewise previously approved the use of a release associated with an offer of judgment, but we have emphasized the limits of using such an...