Supreme Court of Florida
No. SC2024-1274
TRACE ELEMENTS, INC.,
Petitioner,
vs.
NADJA MACKENSEN, et al.,
Respondents.
July 2, 2026
MUÑIZ, J.
Florida Rule of Civil Procedure 1.442 governs “all proposals for
settlement authorized by Florida law,” including those made under
the offer of judgment statute, section 768.79. Rule 1.442(c)(3)
addresses joint proposals for settlement, that is, proposals made by
or to multiple parties. It says that “[a] joint proposal must state the
amount and terms attributable to each party.” In the decision
under review, the Fourth District Court of Appeal held that this
apportionment rule does not apply to a “joint proposal regarding a
unified, single claim.” Mackensen v. Trace Elements, Inc., 388 So. 3d 815, 817 (Fla. 4th DCA 2024). That holding expressly and
directly conflicts with the decision of the Second District Court of
Appeal in Cobb v. Durando, 111 So. 3d 277 (Fla. 2nd DCA 2013).
Consistent with our precedents, which mandate strict enforcement
of the rule 1.442(c)(3) apportionment requirement, we now quash
the Fourth District’s decision below and approve the Second
District’s decision in Cobb.
I
Wolfgang and Nadja Mackensen, a married couple, contracted
with professional design company Trace Elements to oversee
renovations of their vacation rental property in Vero Beach. After
Trace Elements prematurely terminated performance, the
Mackensens sued for breach of contract and unjust enrichment.
The company countersued for breach of contract and tortious
interference with a business relationship.
Before trial, the Mackensens served a proposal for settlement 1
to Trace Elements, stating they were willing to accept a lump sum
1. As we will explain, the Mackensens eventually sought attorney’s fees under section 768.79, Florida Statutes. While section 768.79 uses the term “demand for judgment” to refer specifically to a settlement offer made by a plaintiff to a defendant,
-2-of $10,000 in full settlement of the action. In relevant part, their
proposal said:
The Plaintiffs/Counter-Defendants offer to accept a total
sum of TEN THOUSAND DOLLARS and 00/100
($10,000.00) from the Defendant/Counter-Plaintiff in full
settlement of this action and, upon acceptance and
clearance of the payment, the Plaintiffs/CounterDefendants will file a voluntary dismissal, with prejudice,
of the Complaint filed against the Defendant/CounterPlaintiff and the Defendant/Counter-Plaintiff will file a
voluntary dismissal, with prejudice, of the
Countercomplaint filed against the Plaintiffs/CounterDefendants.
Mackensen, 388 So. 3d at 817.
Trace Elements rejected the proposal, the case went to trial,
and the jury ultimately awarded the Mackensens $41,273.70 on
their breach of contract claim.2 The Mackensens moved for
attorney’s fees and costs under section 768.79. But the trial court
denied the motion after concluding that their settlement proposal
was invalid for failure to comply with rule 1.442(c)(3)’s
rule 1.442 refers to a settlement offer made by either a plaintiff or a defendant as a “proposal for settlement.” This opinion will use the term “proposal for settlement” to refer to the Mackensens’ offer.
2. Trace Elements received nothing on its competing breach of contract claim, and the trial court granted the Mackensens a directed verdict on Trace Elements’ claim for tortious interference with a business relationship.
-3-apportionment requirement.
The Mackensens appealed to the Fourth District, which
reversed and remanded for an award of attorney’s fees. Id. at 816.
The district court acknowledged that rule 1.442(c)(3) requires joint
proposals to state the amount and terms attributable to each party.
Id. at 816-17. Nevertheless, it held that the Mackensens’
settlement proposal “was a joint proposal regarding a unified, single
claim, which did not require apportionment to comply with rule
1.442.” Id. at 817.
The Fourth District’s decision expressly and directly conflicts
with the Second District Court of Appeal’s decision in Cobb. There,
married homeowners served an unapportioned settlement proposal
to a roofing contractor, seeking to settle their unified, single breach
of contract claim. 111 So. 3d at 277. The Second District held that
the joint proposal was invalid under rule 1.442(c)(3) for its failure to
apportion the proposal between the plaintiff homeowners. Id. at
278.
We accepted jurisdiction after Trace Elements sought our
review of the Fourth District’s decision in Mackensen. See art. V,
§ 3(b)(3), Fla. Const.
-4-II
As we have noted, this case involves section 768.79, the
statute under which the Mackensens sought attorney’s fees, and
rule 1.442, which implements the statute. Before turning to the
parties’ arguments, we briefly describe the relevant contents of the
statute and the rule.
Section 768.79 “provides a sanction against a party who
unreasonably rejects a settlement offer” and “generally creates a
right to recover reasonable costs and attorney[’s] fees when a party
has satisfied the terms of the statute and rule.” Att’ys’ Title Ins.
Fund, Inc. v. Gorka, 36 So. 3d 646, 649 (Fla. 2010). The statute
provides in relevant part:
(1) In any civil action for damages filed in the courts of
this state, . . . [i]f a plaintiff files a demand for judgment
which is not accepted by the defendant within 30 days
and the plaintiff recovers a judgment in an amount at
least 25 percent greater than the offer, she or he shall be
entitled to recover reasonable costs and attorney’s fees
incurred from the date of the filing of the demand.
§ 768.79(1), Fla. Stat. (2022).
To be valid under the statute, a proposal must:
(a) Be in writing and state that it is being made pursuant
to this section.
-5-(b) Name the party making it and the party to whom it is
being made.
(c) State with particularity the amount offered to settle a
claim for punitive damages, if any.
(d) State its total amount.
§ 768.79(2), Fla. Stat. When the specified conditions are met, a
party is entitled to fees under the statute, unless the trial court
determines that the proposal for settlement “was not made in good
faith.” See § 768.79(1), (8)(a), Fla. Stat.
While section 768.79 creates the substantive right to an
attorney’s fees award, rule 1.442 “provides the method and means
of implementing this right by outlining the required form and
content of a proposal for settlement.” Gorka, 36 So. 3d at 649.
Subdivision (c)(3) of the rule says:
A proposal may be made by or to any party or parties and
by or to any combination of parties properly identified in
the proposal. A joint proposal must state the amount
and terms attributable to each party.
Fla. R. Civ. P. 1.442(c)(3) (emphasis added). We have said that this
apportionment rule implements the textual requirement of section
768.79(2)(b) that a proposal “name the party making it and the
party to whom it is being made.” See Kuhajda v. Borden Dairy Co.
of Ala., LLC, 202 So. 3d 391, 394-95 (Fla. 2016); Gorka, 36 So. 3d
-6-at 650 (“Reading the plain language of the statute, we recognize[]
that the reference to ‘party’ in the singular in section
768.79(2)(b) indicate[s] the intent of the Legislature that an offer
must specify the amount attributable to each party.” (citing Allstate
Indem. Co. v. Hingson, 808 So. 2d 197, 199 (Fla. 2002))).
III
A
Trace Elements argues that the Fourth District erred by
creating an ad hoc exception to rule 1.442(c)(3) for “a joint proposal
regarding a unified, single claim.” Mackensen, 388 So. 3d at 817.
We agree. The Mackensens’ settlement proposal was invalid under
the text of the rule. And our precedents, which have involved
myriad factual scenarios, have consistently mandated strict
enforcement of the rule.
Recall that the text of rule 1.442(c)(3) says that “[a] joint
proposal must state the amount and terms attributable to each
party.” In Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So. 2d
276, 278-79 (Fla. 2003), our Court held that the term “joint
proposal” in the rule simply means a proposal made by or to
multiple parties. We concluded that “the plain language of rule
-7-1.442(c)(3) requires that offers of judgment made by multiple
offerors must apportion the amounts attributable to each offeror.”
Id.; see also Pratt v. Weiss, 161 So. 3d 1268, 1271 (Fla. 2015)
(same).
Our precedents applying rule 1.442(c)(3) have consistently
emphasized the need for strict enforcement of the rule. We have
invalidated an unapportioned settlement offer presented by two
plaintiffs to one defendant, see Willis Shaw, 849 So. 2d at 277; an
unapportioned settlement offer presented by one plaintiff to two
defendants, see Lamb v. Matetzschk, 906 So. 2d 1037, 1040 (Fla.
2005); an unapportioned settlement offer presented by two
defendants to one plaintiff, see Pratt, 161 So. 3d at 1273; and even
an unapportioned settlement offer presented by one plaintiff to one
defendant that sought to resolve claims involving additional parties
not named in the proposal, see Audiffred v. Arnold, 161 So. 3d
1274, 1280 (Fla. 2015).
To identify a “joint proposal” subject to the rule 1.442(c)(3)
apportionment requirement, we have never relied on factors beyond
the multiplicity of the parties. The parties’ relationships, theories of
liability, or the number or nature of claims have been irrelevant to
-8-our application of the rule. Nor have we conditioned enforcement of
the rule on whether doing so aligned with the purposes of section
768.79. Predictable and consistent application of the rule has
created a framework on which parties governed by the rule can rely,
without having to make case-by-case guesses about whether an
underlying statutory purpose will excuse compliance with the rule.
In Lamb, for example, we held that the plain language of rule
1.442(c)(3) “mandates that offers of settlement be differentiated
between the parties, even if a party’s liability is purely vicarious.”
906 So. 2d at 1038. Our Court was unmoved by an argument
about the difficulty of apportioning a settlement proposal in that
circumstance. Id. at 1041. Instead, we insisted on strict
enforcement, observing that “[t]he rule makes no distinction
between multiple plaintiffs and multiple defendants, nor does it
make any distinction based on the theory of liability.” Id. at 1042.
In a concurrence expressing concern that the Court’s holding would
not “foster the primary goal of the rule and section 768.79,” Justice
Pariente explained that the Court had interpreted the rule “to
require differentiated offers of judgment, regardless of whether the
offer emanates from or is directed to joint parties who have a
-9-common interest.” Id. at 1042-43 (Pariente, C.J., specially
concurring).
Similarly, Pratt involved a settlement offer tendered by a
limited partnership and one of its partners who were the defendants
in the case and jointly owned the medical center involved in the
underlying negligence action. Pratt, 161 So. 3d at 1270. After
concluding that each entity was a distinct party in the case, we
found their offer to be a joint proposal, and we strictly enforced the
rule. Id. at 1273. We reasoned that, even if “any alleged liability of
[the two defendants] could be viewed as coextensive, this does not
constitute an exception to the apportionment requirement.” Id. at
1272. “While it may have been difficult for [the two entities] to
apportion the settlement amount based on their purported liability,
and even though they could have later apportioned their
contribution had [the plaintiff] accepted the offer,” our Court added,
“these are not recognized legal elements to disregard or circumvent
the rule that requires apportionment of a settlement amount where
a proposal is presented by multiple parties.” Id. at 1273. We went
so far as to say: “Even where no logical apportionment can be made,
it is nonetheless required where more than one offeror or offeree is
- 10 -involved.” Id. at 1272-73.
It is against this backdrop of text and precedent that we must
evaluate the Mackensens’ settlement proposal here. There is no
question that it was a joint proposal: it came from both Wolfgang
and Nadja Mackensen, each a distinct plaintiff. Indeed, as noted
above, the Fourth District itself described the proposal as a “joint
proposal.” Mackensen, 388 So. 3d at 817. It is also undisputed
that the proposal was unapportioned: it offered to accept from Trace
Elements a lump sum of $10,000, without allocating distinct
amounts to Wolfgang and Nadja individually. The Mackensens’
proposal was invalid under rule 1.422(c)(3), and our precedents call
for strict enforcement of the rule.
B
The Mackensens do not dispute that their settlement offer was
a “joint proposal,” and they make no effort to argue that their offer
complied with the plain language of rule 1.442(c)(3) or our
precedent. Nor do the Mackensens maintain that it would have
been impossible for them to comply with the rule. Instead, they
defend the Fourth District’s decision on the ground that it would be
“nonsensical” to apply the rule on these facts and that “strict
- 11 -construction of a procedural rule is improper where it defeats the
purpose of section 768.79.” The Mackensens maintain that
enforcing the requirements of rule 1.442(c)(3) in their case would
elevate form over substance. 3
As we have explained, our Court’s precedents have not
conditioned enforcement of rule 1.442(c)(3) on whether, given the
facts at issue in each case, doing so would help or hurt the goals or
purposes underlying section 768.79 and the rule. In our view,
parties are entitled to rely on our consistent application of the rule,
especially because section 768.79, which the rule implements, is a
“penalty statute.” Coates v. R.J. Reynolds Tobacco Co., 365 So. 3d
353, 355 (Fla. 2023).
In their search for authority to support their argument against
enforcing rule 1.442(c)(3) here, the Mackensens rely primarily on
3. Without offering explanation or support, the Mackensens also suggest that apportionment of a claim involving property they jointly own as tenants by the entireties is “impractical.” We fail to see why the Mackensens’ joint ownership of the vacation rental property alters the requirement of strict compliance with rule 1.442(c)(3), and we are persuaded by the Second District’s rejection of this very argument in Cobb and again in Watkins v. Corbett, 2026 WL 816637 (Fla. 2d DCA Mar. 25, 2026). See Cobb, 111 So. 3d at 278; Watkins, 2026 WL 816637, at *2.
- 12 -our decision in Kuhajda, but that case is inapposite. Kuhajda
involved a different provision, rule 1.442(c)(2)(F), which requires a
settlement proposal to state whether it includes attorney’s fees. We
excused noncompliance with that requirement in Kuhajda because
the plaintiff/offeror had not sought attorney’s fees in her complaint.
202 So. 3d at 393. Essential to our reasoning was that the
attorney’s fee rule “does not implement a substantive requirement
of section 768.79.” Id. at 395. Our opinion in Kuhajda expressly
distinguished a list of cases, including Willis Shaw, Gorka, Lamb,
and Pratt, where we had imposed “strict enforcement” of rule 1.442
“in contexts in which the provisions of the rule implemented the
substantive requirements of section 768.79.” Id. at 394-95. Thus,
Kuhajda is of no help to the Mackensens because, as this Court has
already determined, rule 1.442(c)(3) implements a substantive
requirement of the statute.
The Mackensens also stress that their settlement proposal
was not ambiguous—a point that Trace Elements does not dispute.
Under our precedents, though, that does not save a settlement
proposal that otherwise fails to comply with the rule. As the First
District Court of Appeal has observed, our Court “has made the test
- 13 -strict compliance, not the absence of ambiguity.” R.J. Reynolds
Tobacco v. Ward, 141 So. 3d 236, 238 (Fla. 1st DCA 2014).
C
We recognize the force of the Mackensens’ arguments as a
matter of practicality and common sense under the specific facts of
their case. We also acknowledge that strict application of rules can
sometimes be in tension with the purposes or policies underlying
those rules. Cf. Fox Valley & Vicinity Constr. Workers Pension Fund
v. Brown, 897 F.2d 275, 283-84 (7th Cir. 1990) (Easterbrook, J.,
dissenting) (“Rules have their flaws; loopholes and overbreadth,
both producing unpalatable outcomes in the event of unanticipated
circumstances, are among them. But whether to have rules (flaws
and all) or more flexible standards (with high costs of
administration and erratic application) is a decision already made
by legislation.”). Nonetheless, our precedents under rule 1.442(c)(3)
reflect a judgment that, overall, the benefits of strict enforcement
outweigh whatever would be gained by making ad hoc exceptions to
address overbreadth in the rule.
We decline in this case to contort the existing rule’s text and
our precedents to reward a party that disregarded those authorities
- 14 -and now complains that compliance would have been impractical.
To the extent this case has illuminated a potential flaw in rule
1.442(c)(3), we believe the appropriate course is to review the rule
and, if a change is warranted, amend its text. That is the path we
followed after our Court’s decision in Lamb, which led to a rule
amendment to address cases involving parties with only vicarious
liability. See In re Amends. to Fla. Rules of Civ. Proc., 52 So. 3d 579
(Fla. 2010) (adopting rule 1.442(c)(4)).
IV
We hold that rule 1.442(c)(3) requires apportionment of a joint
proposal regarding a unified, single claim. We therefore quash the
Fourth District’s decision in Mackensen, and we approve the
Second District’s decision in Cobb to the extent it is consistent with
our decision today. The cause is remanded to the Fourth District
for further proceedings consistent with our opinion.
It is so ordered.
COURIEL, C.J., and LABARGA and GROSSHANS, JJ., concur. SASSO, J., dissents with an opinion, in which FRANCIS and TANENBAUM, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
- 15 -SASSO, J., dissenting.
This case presents the issue of whether an offer of settlement
submitted by married homeowners for “a unified, single claim for
damages” requires apportionment. The Mackensens are a legally
recognized unit—married couple—and their complaint sought two
claims of damages based on a unified theory of liability. They were
countersued as a unit, where Trace Elements likewise sought
undifferentiated damages based on allegations that did not
distinguish husband from wife in any way. No party disputes that
it would be impossible to distinguish the damages sought by the
Mackensens. Indeed, the verdict form asked the jury: “What are
Nadja Mackensen and Wolfgang Mackensens’ damages as a result
of the failure or prohibited conduct?” The jury awarded the
Mackensens an undifferentiated award. Even so, the majority
concludes that the Mackensens’ offer of settlement, which did not
apportion the claim between husband and wife, was defective and
legally unenforceable. It reaches this decision by extending broad
language from existing precedents to this unique scenario. I do not
think that step is required because this case presents a legitimate
distinction that we have not yet considered. As a result, I
- 16 -respectfully dissent.
I
Contrary to both Petitioner’s and the majority’s position,
precedent does not require that we disapprove of the Fourth
District’s decision. Petitioner characterizes this Court’s precedents
as creating a “bright-line rule with no exceptions” that damages
must be apportioned any time there are two or more parties. The
majority gives credence to this position. Below, I explain why
neither our precedent nor the logic underlying our precedent
requires that conclusion.
A
This case presents a distinct set of facts that our precedents
have not yet considered. This is significant because only holdings
have precedential effect. State v. Yule, 905 So. 2d 251, 259 & n.10
(Fla. 2d DCA 2005) (Canady, J., specially concurring) (“The doctrine
of stare decisis, of course, does not require that we treat every
broad statement of principle made in a prior decision as
establishing a binding rule.”). And “[a] holding consists of those
propositions along the chosen decisional path or paths of reasoning
that (1) are actually decided, (2) are based upon the facts of the
- 17 -case, and (3) lead to the judgment.” See Pedroza v. State, 291 So.
3d 541, 547 (Fla. 2020) (quoting Yule, 905 So. 2d at 259 n.10); see
also Cusick ex rel. Cusick v. City of Neptune Beach, 765 So. 2d 175,
177 (Fla. 1st DCA 2000) (“[T]he doctrine of stare decisis applies a
rule of law established in an earlier case only to a later case that
involves a factual situation similar to that in the former.”
(citing Forman v. Fla. Land Holding Corp., 102 So. 2d 596, 598 (Fla.
1958))).
The majority disagrees, starting with the proposition that we
have already held in Willis Shaw Express, Inc. v. Hilyer Sod, Inc.,
849 So. 2d 276, 278-79 (Fla. 2003), that a “joint proposal” is any
proposal submitted by two people. But Willis Shaw did not sweep
so broadly. There we addressed a conflict as applied to a proposal
for settlement made by (1) a plaintiff seeking to recover damages
incurred to its tractor-trailer and (2) a plaintiff seeking to recover
damages for the loss of personal property that he stored in the
tractor. Id. at 277. We held that “an offer from multiple plaintiffs
must apportion the offer among the plaintiffs.” Id. at 279. But we
made that statement against the specific factual backdrop of the
case and did not address whether a proposal by unified plaintiffs
- 18 -with an undifferentiated claim of damages also required
apportionment. As a result, Willis Shaw does not control the
outcome of this case because our reference to “multiple plaintiffs”
arose out of meaningfully different facts.
The remainder of the cases cited by the majority also present
factually distinct scenarios. And contrary to the majority’s
characterization, the resolution of those cases appears at least
partially based on the theories of liability and the legal relationship
between the parties. For example, Lamb v. Matetzschk considered
the issue of a joint proposal to two defendants, where one defendant
was only vicariously liable. 906 So. 2d 1037, 1039 (Fla. 2005). In
Pratt v. Weiss, we concluded that a single offer made by separate
legal entities was a joint proposal even if part of their liability was
coextensive. 161 So. 3d 1268, 1272 (Fla. 2015). In support of that
conclusion, we highlighted that the plaintiff pursued separate
claims against each defendant in separate counts of the complaint.
Id. We also emphasized that Florida law treated the two defendants
as distinct legal entities. Id. Likewise, Audiffred v. Arnold involved
a married couple that pursued separate claims of damages following
an automobile accident. 161 So. 3d 1274, 1275 (Fla. 2015). The
- 19 -wife sought damages for her injuries and for vehicle repairs, while
the husband sought damages for loss of consortium. Id. Like we
did in Pratt, we highlighted that “[t]he complaint in this case
involved separate claims” and that the proposal would settle claims
by each of the plaintiffs without identifying “what portion of the
amount offered would be applicable to” the wife versus the
husband. Id. at 1279-80.
Because none of these prior cases involved a unified claim for
undifferentiated damages by homeowner spouses, they do not
dictate a specific outcome in this case. See Pratt 161 So. 3d at
1274 (Canady, J. dissenting) (concluding there was no conflict with
cases that hold apportionment of a settlement amount is required
where an offer of judgment is made by or to multiple parties where
the offer at issue was made on behalf of the single hospital entity
allegedly responsible and therefore was distinguishable based on
the facts).
B
Even though the cases considered by the majority arose under
materially different factual scenarios, the majority adds that the
underlying logic of our precedent requires we quash the Fourth
- 20 -District’s decision. The majority says that because our precedent
requires strict construction untethered from logical application or
purpose, we must insist on “strict compliance” here. But our
precedent has always rooted our adherence to strict compliance in a
purpose-driven justification that is absent from this factual
scenario.
We articulated this purpose-drive justification mostly clearly in
Audiffred, where we highlighted “[t]he purpose of the apportionment
requirement in the rule is to allow each offeree to evaluate the terms
and the amount of the offer as it pertains to him or her.” 161 So.
3d at 1278 (quoting Pratt, 161 So. 3d at 1272). We concluded that
the offer in that case was “fatally ambiguous” and invalid because it
“lacked sufficient clarity to permit [the defendant] to reach an
informed decision with regard to the settlement amount against the
pending claims by [the plaintiffs].” Id. at 1280 (citing State Farm
Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006),
and Fla. R. Civ. P. 1.442(c)(2)(C)). That same day we released our
opinion in Pratt—the worst offender because it required
apportionment even when “no logical apportionment can be made.”
161 So. 3d at 1272-73. In that case, we reiterated that “[t]he
- 21 -purpose of the apportionment requirement in the rule is to allow
each offeree to evaluate the terms and the amount of the offer as it
pertains to him or her.” Id. at 1272 (citing Willis Shaw, 849 So. 2d
at 278).
A decade earlier, we cited this same justification for our
decision in Lamb, noting that “[t]o further the statute’s goal, each
party who receive[s] an offer of settlement is entitled . . . to evaluate
the offer as it pertains to him or her.” 906 So. 2d at 1041
(alterations and omission in original) (quoting Allstate Indem. Co. v.
Hingson, 808 So. 2d 197, 199 (Fla. 2002)). We invalidated that
proposal because “[e]ach defendant should be able to settle the suit
knowing the extent of his or her financial responsibility.” Id. at
1040. That purpose-driven logic is also apparent in Attorneys’ Title
Insurance Fund, Inc. v. Gorka when we restated the purpose of the
apportionment rule and concluded that “a proposal that conditions
acceptance upon the mutual agreement of both parties and
prohibits either party from independently evaluating and accepting
the amount offered violates these principles.” 36 So. 3d 646, 651
(Fla. 2010).
The Mackensens’ offer does not produce the concerns
- 22 -articulated in Pratt, Lamb, Gorka, and Audiffred. The Mackensens’
claim for damages is both factually and legally undifferentiated.
See Beal Bank, SSB v. Almand & Assocs., 780 So. 2d 45, 53 (Fla.
2001) (“[P]roperty held by husband and wife as tenants by the
entireties belongs to neither spouse individually, but each spouse is
seized of the whole.”). Under these circumstances, there is no risk
that Trace Elements will not be able to accurately evaluate and
accept the offer.
II
Because none of our precedents address the unique facts of
this case, we are faced with the decision of either extending
precedent or drawing a line. I think we should do the latter for
several reasons.
First, our insistence on “strict construction” of rule 1.442 rests
on erroneous analysis. In support of our adherence to strict
construction, we have said that because rule 1.442 implements an
attorney’s fees provision that is in derogation of common law, the
derogation canon should be equally applied to our interpretation of
section 1.442. See, e.g., Willis Shaw, 849 So. 2d at 278. That
analysis is faulty because there is no justification for applying the
- 23 -derogation canon to a rule of procedure. See Kuhajda v. Borden
Dairy Co. of Ala., LLC, 202 So. 3d 391, 396 (Fla. 2016) (“A
procedural rule should not be strictly construed to defeat a statute
it is designed to implement.”). Instead, to the extent we require a
substantive canon to aid our interpretation, the applicable rule of
construction is specified in rule 1.010. See Campbell v. Goldman,
959 So. 2d 223, 228 (Fla. 2007) (Bell, J., concurring in result only)
(stating that to the extent there is ambiguity in rule 1.442, the
standard of construction stated in rule 1.010 would apply, not the
derogation canon); Fla. R. Civ. P. 1.010 (“These rules shall be
construed to secure the just, speedy, and inexpensive
determination of every action.”). The derogation canon simply has
no place in the interpretation of rule 1.442. See, e.g., Goldman v.
Campbell, 920 So. 2d 1264, 1270 (Fla 4th DCA 2006) (Farmer, J.,
concurring specially) (“[T]he derogation canon—created
for statutory changes in substantive common law—has no logical
purpose or use in the interpretation of mere rules of procedure.”).
Second, both the rule and statute have undergone
amendments since we decided many of the cases that the majority
cites. This signals both a rejection of our application of the law to
- 24 -specific facts and the logic underlying those decisions. For
example, following Lamb, we amended rule 1.442 to allow the types
of proposals that case rejected. In re Amends to Fla Rules of Civ.
Proc., 52 So. 3d 579, 588 (Fla. 2010). Then in 2022, the Legislature
amended section 768.79 to include subsection (6), which allows
joint settlements to be conditioned on mutual acceptance in a
specific circumstance. § 768.79(6), Fla. Stat. (2022). We followed
up with a rule amendment, also eliminating our requirement that
proposals for settlement include non-monetary terms. See In re
Amends. to Fla. Rule of Civ. Proc. 1.442, 345 So. 3d 845, 846 (Fla.
2022). Each of those developments, in my view, counsels against
overreading our precedent and any continued adherence to the
faulty logic underlying those decisions.
Third, our more recent precedents have attempted to reorient
this Court to its proper endeavor: giving effect to the substantive
requirements of section 768.79. See Wheaton v. Wheaton, 261 So.
3d 1236, 1244 (Fla. 2019) (holding that even if procedural rule
applied to proposals for settlement, offeror’s failure to comply with
the rule would not render the proposal unenforceable because the
proposal complied with the substantive requirements of section
- 25 -768.79); Kuhajda, 202 So. 3d at 395-96 (noting that, in interpreting
this rule, we should be mindful that it is a procedural rule, the only
purpose of which is to implement the substantive requirements of
section 768.79). This shift toward honoring the substantive law we
are tasked with interpreting also furthers the judicial policy
underlying our rules of procedure. See generally Fla. R. Civ. P.
1.010; Nichols, 932 So. 2d at 1078 (acknowledging the purpose of
proposals for settlement is “to end judicial labor, not create more”
(quoting Nichols v. State Farm Mut., 851 So. 2d 742, 746 (Fla. 5th
DCA 2003))).
Each of those factors favors a narrow reading of our precedent.
Viewed through that lens, the question of whether the Mackensens’
proposal for settlement is enforceable is an easy one. The proposal
satisfies the requirements of section 768.79, Florida Statutes,
which lays out the substantive law the Mackensens seek to enforce.
As for rule 1.442, it says “[a] proposal may be made by or to any
party or parties and by or to any combination of parties properly
identified in the proposal. A joint proposal must state the amount
and terms attributable to each party.” Fla. R. Civ. P. 1.442(c)(3).
Interpreted reasonably, the Mackensens’ offer satisfies the rule
- 26 -because it conveys that the full amount of damages is equally
attributable to both of them. So, even if the Mackensens’ proposal
is considered a “joint” proposal under the rule, 4 the rule does not
prohibit a married couple with an undifferentiated claim for
damages from presenting a unified offer. See Gorka, 36 So. 3d at
654 (Polston, J. dissenting) (“To interpret these provisions any other
way effectively eliminates the ability to make joint offers.”).
To hold otherwise converts the word “the” in rule 1.442(c)(3) to
“an.” In other words, the majority’s interpretation requires the
parties apportion “an amount and terms” attributable to each party,
even if the full amount of damages is attributable to both named
parties as a unit. That is not a reasonable interpretation of rule
1.442. It forces an interpretation that ignores how the law operates
and the context of the claims in which joint offers are tendered, and
undermines the statute that it is designed to implement.
III
Invaliding the proposal here results in an illogical application
of law to facts. Because of the way the law operates, it would be
4. The Mackensens have not argued their proposal does not qualify as a joint proposal as contemplated by the rule.
- 27 -impossible to differentiate the damages sought by the Mackensens.
Even so, and despite not violating any statutory provision, the
majority invalidates the proposal by both strictly construing our
rule and expansively applying our precedent interpreting the rule.
While I recognize that coherency in the law is a worthy endeavor, I
believe our efforts to maintain coherency should be oriented toward
the statute, which sets out the substantive right at issue. Our
efforts should not target consistency in illogical, 5 impractical, 6 and
unworkable7 case law. We can correct course here, and I would.
Therefore, I respectfully dissent.
FRANCIS and TANENBAUM, JJ., concur.
5. See, e.g., Pratt, 161 So. 3d at 1272-73 (“Even where no logical apportionment can be made, it is nonetheless required when more than one offeror or offeree is involved.” (citing Easters v. Russell, 942 So. 2d 1008, 1009 (Fla. 2d DCA 2006))).
6. See, e.g., Lamb, 906 So. 2d at 1041 (“It may take some creative drafting to fashion an offer of settlement when one party is only vicariously liable.”).
7. See, e.g., Gorka, 36 So. 3d at 654 (Polston, J., dissenting) (explaining that the majority’s ruling “effectively eliminates the ability to make joint offers”); Atl. Civ., Inc. v. Swift, 271 So. 3d 21, 26 (Fla. 3d DCA 2018) (explaining that “although expressly permitted under rule 1.442(c)(3), ‘joint proposals have become a trap for the wary and unwary alike’ under the principle set forth in Gorka” (quoting Pacheco v. Gonzalez, 254 So. 3d 527, 535 (Fla. 3d DCA 2018))).
- 28 -Application for Review of the Decision of the District Court of Appeal
Direct Conflict of Decisions
Fourth District - Case No. 4D2023-1707
(Indian River County)
Andrew A. Harris of Harris Appeals, P.A., Palm Beach Gardens, Florida; and James Beagle of James Beagle, P.A., Fort Lauderdale, Florida,
for Petitioner
Michael Fox Orr and Loreyn P. Raab of Orr Cook, Jacksonville, Florida; and Michael G. Kissner, Jr. and Savannah J. H. Unruh of Block & Scarpa, Vero Beach, Florida,
for Respondents
- 29 -