United Services Auto. Ass'n v. Behar, 2D99-01592.

Decision Date21 January 2000
Docket NumberNo. 2D99-01592.,2D99-01592.
Citation752 So.2d 663
PartiesUNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. Raymond J. BEHAR, M.D., and Susan L. Behar, his wife, Appellees.
CourtFlorida District Court of Appeals

Kimberly Staffa Mello and David J. Abbey, of Fox, Grove, Abbey, Adams, Byelick & Kiernan, LLP, St. Petersburg, for Appellant. David A. Maney and Lorena L. Kiely of Maney, Damsker & Jones, Tampa, for Appellees.


In this appeal we construe the language of Florida Rule of Civil Procedure 1.442 in the context of a proposal for settlement made by a single defendant to two plaintiffs. The trial court denied the appellant, United Services Automobile Association (USAA), attorney fees under the offer of judgment statute, section 768.79, Florida Statutes (1995), and rule 1.442, and USAA appealed that judgment. Finding that the trial court properly applied the rule, we affirm.

On August 25, 1994, the appellee, Raymond Behar, M.D. was involved in a motor vehicle accident when the automobile he was operating was struck in the rear by an automobile operated by Francis Bassano. At that time, Dr. Behar was insured by an automobile liability policy issued by USAA. After settling his claim with Mr. Bassano's insurance carrier for the policy's limits, Dr. Behar and his wife, appellee Susan L. Behar, instituted an action against USAA under the terms of their policy's underinsured motorist coverage. In Count I, Dr. Behar sought benefits for damages he alleged resulted from the accident. Mrs. Behar, in Count II, claimed damages resulting from a loss of consortium.

Pursuant to section 768.79 and rule 1.442, USAA served upon the Behars an offer of judgment and proposal for settlement in the amount of $125,001. Neither Dr. nor Mrs. Behar timely responded to this offer and, accordingly, by statutory operation, it was deemed rejected. Later during the litigation, Dr. and Mrs. Behar served USAA with a demand for judgment pursuant to the same statute in the amount of $395,000.00, which USAA rejected. Because the parties were unable to reach a settlement agreement the case went to trial.

The jury returned a verdict determining that there was no negligence by Mr. Bassano that was the legal cause of Dr. Behar's damages. In posttrial proceedings USAA moved for attorney's fees based on the offer of judgment statute and its rejected offer. The trial court denied the motion for fees concluding that USAA had not complied with the provisions of rule 1.442.

Effective January 1, 1997, rule 1.442 applies to all proposals for settlement authorized by Florida law, regardless of how they are denominated. See Fla. R. Civ. P. 1.442(a). Subsection (c)(3) of the rule requires that "[a] joint proposal shall state the amount and terms attributable to each party." USAA's proposal, made on May 23, 1997, offered, in relevant part, "to settle the above-styled cause by allowing the Plaintiffs, Raymond J. Behar, M.D. and Susan L. Behar, his wife, to take a judgment against the Defendant, USAA, for a total sum of One Hundred Twenty-Five Thousand and One and No/100 Dollars ($125,001.00)."

The trial court correctly found that USAA's offer of judgment was defective because it failed to comply with the mandate of rule 1.442(c)(3) to specify the amounts offered to each party. Here, a lump sum amount was offered, without the necessary specificity as to Dr. or Mrs. Behar. See DiPaola v. Beach Terrace Ass'n, 718 So.2d 1275, 1277 (Fla. 2d DCA 1998) (holding that if it is impossible to perform, with any certainty, the calculation necessary to determine the applicability of section 768.79, then the offer cannot support an award of fees). There were two claims in this case, Dr. Behar's and Mrs. Behar's, and each was separate and distinct from the other. The purpose of section 768.79 is to encourage the resolution of litigation. See Eagleman v. Eagleman, 673 So.2d 946 (Fla. 4th DCA 1996). To further the statute's goal, each party who receives an offer of settlement is entitled, under the rule, to evaluate the offer as it pertains to him or her. To accept USAA's position, that its unspecified joint proposal satisfies the requirements of the rule, would mean that Mrs. Behar would not have an independent right to evaluate and decide the conduct of...

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33 cases
  • Nichols v. State Farm Mut.
    • United States
    • Florida District Court of Appeals
    • June 13, 2003
    ...no ambiguities so that the recipient can fully evaluate its terms and conditions. Id. at 973 (citing United Servs. Auto. Ass'n v. Behar, 752 So.2d 663, 665 (Fla. 2d DCA 2000)). Moreover, the proposal should be capable of execution without the need for further explanation or judicial interpr......
  • Thompson v. Hodson
    • United States
    • Florida District Court of Appeals
    • May 9, 2002
    ...in an automobile accident and the wife's resulting consortium claim), approved, 808 So.2d 197 (Fla.2002); United Servs. Auto. Ass'n v. Behar, 752 So.2d 663, 664-65 (Fla. 2d DCA 2000) ("The trial court correctly found that USAA's offer of judgment was defective because it failed to comply wi......
  • Dudley v. McCormick
    • United States
    • Florida District Court of Appeals
    • November 16, 2001
    ...plaintiff, Ms. McCormick's proposal for settlement failed to meet the requirements of the rule. See United Servs. Auto. Ass'n v. Behar, 752 So.2d 663, 664-65 (Fla. 2d DCA 2000). See also Julie H. Littky Rubin, Proposals for Settlement, Fla. B.J., Feb. 2001, at 12, 14-15. Because there were ......
  • McMahan v. Toto
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • November 6, 2002
    ...fees." Fla. R. Civ. P. 1.442(c)(2)(D) and (F). That rule applies to offers made pursuant to § 768.79. See United Servs. Auto. Ass'n v. Behar, 752 So.2d 663 (Fla. 2d DCA 2000). Where an offer explicitly excludes attorney's fees, it is invalid because the total amount of the proposal is not s......
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1 books & journal articles
  • Proposals for settlement: minding your p's and q's under rule 1.442.
    • United States
    • Florida Bar Journal Vol. 75 No. 2, February - February 2001
    • February 1, 2001
    ...Danner Const. Co., Inc. v. Reynolds Metals Co., 760 So. 2d 199, 102 (Fla. 2d D.C.A. 2000). (21) United Services Auto. Ass'n. v. Behar, 752 So. 2d 663 (Fla. 2d D.C.A. 2000), rev. granted, (Table No. SC00 - 595) (Fla. July 25, (22) Goldstein v. Harris, 25 Fla. L. Weekly D2066 (Fla. 4th D.C.A.......

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