DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

LATASHA FULTON ALLEN and TRAVIS ALLEN, as parents and natural 

guardians of T.A., a minor child; LATASHA FULTON ALLEN, as mother 

and natural guardian of T.S., a minor child, and LATASHA FULTON 

ALLEN, as legal guardian of S.K., a minor child,

Appellants,

v.

OSCAR MONTALVAN, CLAUDIA DEBUSK f/k/a CLAUDIA 

MONTALVAN, and PROGRESSIVE INSURANCE COMPANY,

Appellees.

No. 4D15-675

[June 22, 2016]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Dale Ross, Judge; L.T. Case No. 11-19315 (08).

Jay B. Green of Green Ackerman & Frost, P.A., Boca Raton, William B. 

King of Searcy Denney Scarola Barnhart & Shipley, P.A., and Philip M. 

Burlington and Nichole J. Segal of Burlington & Rockenbach, P.A., West 

Palm Beach; for appellants.

John H. Richards, Michele Ricca, and Yvette Lavelle of Boyd Richards 

Parker & Colonelli, P.L., Fort Lauderdale, for appellee Claudia Debusk 

f/k/a Claudia Montalvan.

John J. Wilke and Luis A. Botero of The Law Office of John J. Wilke, 

Boca Raton, for appellee Oscar Montalvan.

Thomas E. Scott and Scott A. Cole of Cole, Scott & Kissane, P.A., Miami, 

for appellee Progressive Insurance Company.

FORST, J.

Appellants Latasha Fulton Allen (“the mother”) and Travis Allen (“the 

father”), on behalf of minors, T.A., T.S., and S.K (collectively “the 

children”), appeal the trial court’s order enforcing a settlement agreement 

and dismissing their suit against appellees Oscar Montalvan and Claudia 

Debusk (Montalvan’s former wife). Because we agree that the settlement 
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agreement was invalid as to the claims of the children, we reverse the trial 

court’s order and remand for further proceedings.

BACKGROUND

The children were three of six passengers in an automobile that was 

involved in an accident with the appellees. The driver of the automobile, 

the grandmother of two of the children and the mother of the third, was 

killed in the crash. The other passengers, including the mother and 

another minor, suffered varying degrees of injuries. 

Within two days of the accident, the mother entered into an agreement 

with Miller & Jacobs, P.A., to represent herself and her family members, 

including the children, injured in the accident. As part of the 

representation agreement, the mother granted Miller & Jacobs the 

authority to “prosecute any suits or actions . . . and to settle, compromise, 

dismiss, or discontinue same.” 

Miller & Jacobs sent a letter to the appellees’ insurance carrier, 

Progressive (also an appellee in this action), seeking coverage information. 

The appellees’ coverage had limits of $25,000 per person and $50,000 per 

incident. A Progressive employee spoke with Jacobs to discuss possible 

claims against the appellees. 

The details of the conversation between Progressive and Miller & Jacobs

are disputed. The Progressive employee claims she told Jacobs that 

Progressive would be “globally tendering our policy limits to extinguish all 

bodily injury claims.” She recounted that Jacobs requested the payment 

to be made as two checks, for $25,000 each, made payable to Miller & 

Jacobs’s trust account. One check would be to settle the wrongful death 

claim of the grandmother’s estate, while the remaining $25,000 was to 

settle the claims of the five surviving passengers. The Progressive 

employee stated that how Miller & Jacobs chose to divide the monies 

between these remaining claimants was left to the law firm’s discretion. 

Progressive sent release forms to be signed by the mother on behalf of the 

grandmother’s estate, herself, and the four minors. Because of the 

uncertainty of how the funds were going to be allocated, Progressive left 

the amounts in each release blank for the lawyers to fill in. The Progressive 

employee testified that she did not even contemplate that the money would 

be dispersed in such a manner that certain claimants would not receive 

any funds. 

Jacobs’s recollection of the conversation is different. He testified that 

Progressive’s employee offered to tender the full policy limit. Jacobs and 
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the employee did not “go into specifics, as far as dollar amounts per claim. 

We didn’t go into specifics about whose claims we were settling. She just 

said, I’m globally tendering the rest of the $25,000, and I’m going to send 

you blank releases. And I said okay.” Jacobs recalled that he told the

Progressive representative to make the checks payable to his firm’s trust 

account. He did not recall if he spoke with the employee about the 

releases, as he sometimes settled cases without a release. He further 

stated that while he considered the $25,000 and release naming the 

deceased to be a settlement of the wrongful death claim, he did not 

consider the second $25,000 and releases for the other parties to be a 

settlement, but rather considered it an “insurance tender.” Miller echoed 

this testimony, stating that he did not consider the tender to be a 

resolution of the claims, but was merely a tender of the policy limits.

Progressive sent Miller & Jacobs a letter to memorialize the

aforementioned discussion. The letter stated: 

Based on the information we have obtained with regard to this 

loss we are globally tendering our insured’s [sic] $50,000 

bodily injury policy limits to settle the following claims: 

[listing all six of the parties’ names, including the deceased 

driver]. This settlement is being made in exchange for a Full 

and Final Release of our insured’s [sic], Claudia Montalvan 

and Oscar Montalvan.” 

Attached to the letter were two checks for $25,000 each, payable to the 

Miller & Jacobs Trust Account, as well as six releases, each naming one of 

the occupants of the car. The release form naming the deceased stated 

consideration in the amount of $25,000. The other five releases left the 

consideration amounts blank. Each release was entitled “Bodily Injury 

Release” and stated the signatory/party:

hereby for myself, and for my heirs[,] executors, 

administrators, successors and assigns release and forever 

discharge Claudia Montalvan and Oscar Montalvan from any 

and all claims, actions, causes of action, demands, damages, 

costs, and any compensation whatsoever, including any 

claims for loss of consortium, which the undersigned now 

has/have or which may hereafter accrue on account of or in 

any way arising out of an accident which occurred on or about 

August 12, 2009, at or near Andrews Ave & N.E. 56 Street, 

Oakland Park, Broward County, Florida.

The checks were deposited into the law firm’s trust account on August 26, 
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2009, and payments from those funds were made to the mother by 

sometime in 2011. The mother and father testified that these funds were 

used for household expenses, including furniture, clothes, and food for the 

children. 

Roughly two years later, in August 2011, Miller & Jacobs sent the 

completed releases back to Progressive, with each release signed by the 

mother and a witness. Each release was accompanied by a letter, stating 

that it was a “release of all claims with regard to the settlement of the 

above-referenced claim.” The blank consideration amounts were now filled 

in, with the mother’s claim stating it was released for $25,000, while all 

the minors’ claims showed consideration in the amount of $0. Everyone 

involved, including Miller, Jacobs, and the mother, claimed to have no 

knowledge as to who filled in these blanks, although the figures were 

apparently added while the documents were in Miller & Jacobs’s control. 

In his deposition, Miller stated that his representation of the plaintiffs “was 

completed” in August 2011, after the releases had been returned.

Approximately two weeks after the return of the releases, the mother, 

now represented by new attorneys, filed a complaint that, after multiple 

amendments, alleged a claim for damages against the appellees arising 

from the auto accident. The appellees answered the complaint and raised

a number of affirmative defenses, including that the claims were barred by 

settlement or accord and satisfaction arising from the prior release, as well 

as contributory negligence on the part of the mother and deceased driver. 

Progressive intervened in the action to address the limited issues of 

settlement, accord and satisfaction, and release. Progressive moved to 

enforce the purported settlement by dismissing the claims against the 

appellees, and to set a non-jury hearing to determine the validity and 

enforceability of the alleged settlement. The mother objected, arguing that 

the settlement issue should be submitted to a jury.

The trial court conducted an evidentiary hearing without a jury. After 

hearing deposition testimony from the mother, the father, Miller, Jacobs, 

and the Progressive employee, the trial court found in favor of the appellees

and granted the motion to enforce the settlement. The trial court 

concluded that the parties had entered into a binding settlement 

agreement and that chapter 744 of the Florida Statutes did not require a 

different outcome. Accordingly, the trial court dismissed the children’s 

claims and entered final judgment in favor of the appellees. This appeal 

followed. 

ANALYSIS
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The appellants argue that the alleged settlement agreement was invalid 

because it did not comply with the requirements of chapter 744. Whether 

the alleged settlement required the approval of a court under chapter 744 

is a question of law and, as such, is reviewed de novo. Brown v. City of 

Vero Beach, 64 So. 3d 172, 174 (Fla. 4th DCA 2011) (“[W]here the question 

involves interpretation of a statute, it is subject to de novo review.”). “We 

review the trial court’s factual findings for competent, substantial 

evidence.” Siewert v. Casey, 80 So. 3d 1114, 1116 (Fla. 4th DCA 2012).

Section 744.3025(1)(b), Florida Statutes (2009), states that unless a 

guardian with no potential adverse interest to the minor has already been 

appointed, “the court shall appoint a guardian ad litem to represent the 

minor’s interest before approving a settlement of the minor’s claim in a 

case in which the gross settlement involving a minor equals or exceeds 

$50,000” (emphasis added). Although the appellees argue that the 

$25,000 earmarked to settle the claim of the deceased driver should not 

be included in the computation of the “gross settlement” for the purposes 

of this statute, the facts in the record indicate otherwise. The trial court 

found that Progressive globally tendered the $50,000 policy limit to settle 

all claims. This finding was supported by competent substantial evidence 

and leads to the inescapable conclusion that this was a case in which the

universal settlement “involve[ed]” the minor children and was within the 

monetary range of the statute. 

Further support for considering the full $50,000 as a single settlement 

“involving a minor” comes from the Florida Probate Rules. Rule 5.636(d), 

which was intended to mirror the requirements of section 744.3025, 

states: 

The court shall appoint a guardian ad litem on behalf of a 

minor, without bond or notice, with respect to any proposed 

settlement that exceeds $50,000 and affects the interests of 

the minor, if:

(1) there is no court-appointed guardian of the minor;

(2) the court-appointed guardian may have an interest 

adverse to the minor; or

(3) the court determines that representation of the 

minor's interest is otherwise inadequate.

Fla. Prob. R. 5.636(d).1 The committee notes for this provision provide a 

1 We note there is a discrepancy between the language in the statute and the 

language in the rule. Specifically, the statute’s monetary threshold is met when 

a settlement “equals or exceeds $50,000” while the rule triggers only when the 
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useful illustration. 

The total settlement to be considered under subdivisions (d) 

and (e) is not limited to the amounts received only by the 

minor, but includes all settlement payments or proceeds 

received by all parties to the claim or action. For example, the 

proposed settlement may have a gross value of $60,000, with 

$30,000 payable to the minor and $30,000 payable to another 

party. In that instance the total proposed settlement exceeds 

$50,000. 

Fla. Prob. R. 5.636 committee notes. 

Because the pre-suit settlement in this case involved minors and 

totaled $50,000 or more, the trial court was required to appoint a guardian 

ad litem to represent the children’s interest before approving a settlement 

that disposed of the children’s claims. See generally Sullivan v. Dep’t of 

Transp., 595 So. 2d 219 (Fla. 2d DCA 1992) (referencing other chapter 744 

statutory provisions to arrive at the conclusion that, when the monetary 

threshold amount is met in a pre-suit settlement, the minor’s guardian 

(natural or appointed) must obtain the circuit court’s approval of the 

settlement). Because the violation of section 744.3025(1)(b) is alone 

sufficient to require reversal, we do not need to address the appellants’ 

other arguments for invalidating the purported settlement agreement. 

CONCLUSION

The record in this case indicates that Progressive, in good faith, left the 

amounts given to each injured party to be determined by the mother and 

her attorneys, Miller & Jacobs. However, Progressive and the two other 

appellees, as parties to the settlement agreement, had an obligation to 

ensure the settlement was legally binding. Because the proposed 

settlement did not comply with the requirements of section 744.3025, it 

was invalid as to the claims of the children. As such, the trial court erred 

by dismissing the children’s complaint based upon that agreement. We 

settlement “exceeds $50,000.” (emphases added). The committee notes to Rule 

5.636 makes no reference to this difference, but do note that the 2006 

amendment revising the rule was intended “to reflect 2006 passage of new section 

744.3025, Claims of Minors, increasing the dollar figure from $25,000 to $50,000 

as the threshold for requiring appointment of guardian ad litem . . . .” We take 

this note describing the amendment to indicate that the rule is meant to mirror 

the statute and that any alteration of the language was incidental. 
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thus reverse for further proceedings in this case. 

Reversed.

WARNER and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.