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R.J. Reynolds Tobacco, et al. v. Erskin Donal Ward, Case No. 1D13-0869 (1stDCA)

In Ward, the First DCA reversed a trial court’s award of attorneys’ fees and costs pursuant to Fla. Stat. 768.79 and Fla. R. Civ. P. 1.442. In the case, the plaintiff brought suit seeking compensatory and punitive damages against two tobacco companies. While the plaintiff’s claim for punitive damages was pending, the plaintiff served an offer of judgment on the defendants. The offer specified amounts at which the plaintiff was willing to settle all claims with each of the defendants. The offer also stated that “punitive damages are included in the amount of this proposal, whether pled or unpled. Acceptance of this proposal will extinguish any present or future claims for punitive damages.” The First DCA, however, noted that both Fla Stat. 768.79 and Fla. R. Civ. P. 1.442 require the offeror to state with particularity the amount proposed to settle any claim for punitive damages, when such a claim exists. The plaintiff, however, did not specify an amount for settling either of the punitive damages claims, or indicate in any way what portion of the total sum he offered either defendant should be allocated to punitive damages.

The First DCA explained that the offer of judgment statute and the proposal for settlement rule must be strictly construed. While there is no ambiguity in the plaintiff’s offers of judgment – the court notes it is clear the punitive damages claims would have been extinguished if the tobacco companies had accepted the offers – the correct test is strict compliance, not the absence of ambiguity. Because the offers of judgment did not state with particularity the amount proposed to settle a claim for punitive damages, the First DCA reversed the award of attorneys’ fees and costs.

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