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Janice E. Wallen, as Personal Representative v. Cedric Tyson, Case No. 5D14-1564 (5th DCA)

In Wallen, the defendant appealed the trial court’s order striking the defendant’s proposal for settlement as overly broad, vague and ambiguous. The case arose from an automobile accident in September 2010. The defendant later served a proposal for settlement offering to settle the case for $12,000. The proposal attached a proposed release, and noted in the proposal that the defendant was “willing to consider any suggested changes to the release.” At trial, the jury returned a $13,000 verdict in favor of the plaintiff, and after setoff for certain insurance payments, the trial court reduced the award to $3,766.85. The plaintiff then moved to strike the proposal based on various alleged deficiencies. The trial court entered an order striking the proposal finding the proposal to be unenforceable because the language relating to the release was ambiguous. The trial court reasoned that by attaching a release to the proposal, and then adding language in the proposal stating that the defendant was willing to consider any changes to the release, the defendant failed to advise the plaintiff of “any of the release terms.”

On appeal, the Fourth District disagreed. The court noted that the offer of judgment rule and statute must be strictly construed, as they are in derogation of the common law rule that each party pay its own attorneys’ fees. The court then distinguished the cases relied upon by the trial court. One of those cases involved an ambiguous proposal that failed to attach a proposed release or provide a summary of the contents of the release. In Wallen, the release was attached to the proposal. The other two cases relied upon by the trial court involved proposals that contained ambiguous language with regard to whether the proposed general releases would extinguish the non-proposing party’s right to pursue actions against third parties. In Wallen, the release specifically limited the plaintiff’s release to claims against the defendant arising out of the automobile accident.

“Generally, proposals for settlement are unenforceable only where an existing ambiguity ‘creates a necessity for interpretation or a choice among two or more possible meanings’ – rather than potential ambiguities that might occur in future revisions of the proposals.” The Fifth District noted that several opinions provide that proposals were specific and enforceable despite language allowing the non-offering party to suggest modifications to the attached releases. The court found that “no case suggests that the mere offer to negotiate terms of an otherwise-acceptable settlement proposal – or an attached general release – renders the proposal unenforceably vague.” Therefore, the Fifth District reversed, noting that it found no precedent sufficient to discourage a proposing party from offering to negotiate the terms of a proposed settlement or release.

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