An entitlement to a fee award can occur even if the offer rejected by the plaintiff was insultingly low or would not have provided significant compensation. A defendant, for example, may recover crushing attorneys’ fees under the statute even if the defendant’s success resulted from the death of an essential witness, an intervening change in the law, or the jury’s resolution of close and difficult factual disputes. §769.79 in this type of case may lead to harsh results.
Florida law provides that even nominal offers made solely to trigger a potential recovery of attorneys’ fees are valid for that purpose so long as the defendant would have complied with the offer if accepted and there was a “reasonable foundation” for it.6 The “reasonable foundation” for any offer made by a defendant who in fact prevailed is not difficult to demonstrate as the 11th Circuit held in one case, “to accept in the same case in which a party did prevail the notion that there was no reasonable basis for that party prevailing would require self-contradiction on a scale that we are unwilling to consider.”7 The take home message is that a defendant has much to gain, and nothing to lose, by making a statutory offer for the purpose of creating a right to recovery of fees should a defendant be so fortunate as to prevail ultimately in the litigation.
#Offer of judgment full
§768.79, however, apply with full force when a defendant has prevailed entirely after a plaintiff has walked away from a settlement offer in his favor. Such strategic offers offend many judges (and plaintiffs), and have resulted in some language and holdings to the effect that such offers were not in “good faith” under the statute.5 The policy and language of F.S. Essentially the same considerations apply to an offer of settlement which is nominal or simply less than the plaintiff will accept: for instance, less than readily provable out of pocket losses.
Of course, one could envision a number of scenarios wherein the difficulties of applying the Offer of Judgment can arise in multi-defendant actions. While the plain language is rather straightforward, in practice, lawyers and judges have wrestled with the application of the rule in cases involving multiple defendants. Similarly, the rule affords defendants allowances should the plaintiff fail to accept a defense Offer of Judgment, and the money judgment is 80 percent or less than the defendant’s offer. To achieve that laudable goal, if a plaintiff makes an Offer of Judgment, which is not accepted and the plaintiff thereafter obtains a money judgment in an amount that is 120 percent or more than the offer, the plaintiff “shall be allowed” to recover: (1) reasonable litigation expenses following non-acceptance, (2) prejudgment interest of 8 percent from the date of the offer or date of completion of discovery, whichever is later, and (3) a reasonable attorney’s fee for services compelled by the non-acceptance. 4:58) was “designed to produce early out-of-court settlements.” Crudup v.
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