Another Proposal for Settlement Stricken Due to Inconsistent Release Attached

Proposals for Settlement in Florida (also known as Offers of Judgment) have a poor survival rate on appeal.  The chance is decreased, almost to zero, if the offeror mentions a release but does not attach.  Surprisingly, the offeror does not improve their chances by attaching a release.  There’s too much room for ambiguity and inconsistency between the Proposal and release.  But it keeps happening.  The Third Circuit finally calls it.

In South Florida Pool and Spa Corp. v . Sharpe Investment Land Trust Number J, etc., defendants (Pool) served plaintiff (Sharpe) with a proposal directed at the damages claim.  There was also an eviction claim.  The Proposal said that it included attorneys’ fees which are not part of the negligence count.  The release said it covers claims for damages only.  The court decided this was an ambiguity which rendered the Proposal unenforceable.

The Third DCA went on to make the broader point: “as is often the case, the release attached to the Proposal caused, rather than clarified, confusion and ambiguity.  No doubt some courts have encouraged the practice… when the offeror does include the release as part of the Proposal, great care should be taken to ensure that the release precisely and carefully mirrors the terms of the Proposal so that no discrepancy between the two documents exists.”  (see omitted footnotes in the opinion for further analysis)

Christopher B. Hopkins

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