A Proposal for Settling the Interpretation of Florida’s Proposals for Settlement

Although created to encourage settlement, few rules have generated more collateral litigation than Florida’s proposals for settlement provisions. While Florida Statutes section 768.79 creates a substantive right to attorney’s fees, Florida Rule of Civil Procedure 1.442 provides a procedural enforcement mechanism. However, through its unprecedented application of strict construction to a rule of civil procedure, the Florida Supreme Court has arguably made it more difficult to accomplish settlement by adding new requirements for valid proposals. Thus, with collateral litigation looming over proposals for settlement, burdening court dockets, and costing parties additional time and expense, now is the time to realign the court’s interpretation of Rule 1.442 with the legislature’s intent to facilitate settlements. This Note specifically addresses the recent demise of joint proposals for settlement. Part I examines the history of Florida’s proposal for settlement provisions. An overview of recent court decisions regarding joint proposals highlights the implausibility that any joint proposal could satisfy the rigid requirements demanded by the Florida Supreme Court’s interpretation of Rule 1.442. Part II explores how strict construction of Rule 1.442 is at odds with the court’s own interpretive principles for rules of civil procedure. Because this unprecedented strict judicial interpretation of a rule of civil procedure tends to blur the distinction between substantive law and procedural mechanisms, Part III discusses potential constitutional separation of powers implications. Finally, Part IV offers a comparative analysis of Nevada’s proposal for settlement statute and court rule to propose a framework for change in Florida. In conclusion, this Note suggests that the court’s reliance on strict construction of a rule of civil procedure undermines the plain language and intent of Florida Statutes section 768.79. The court would better serve the purpose of proposals for settlement by adhering to the principle that procedural rules are to be construed for the equitable and just application of the substantive law.  J.D. expected, May 2013, University of Florida Levin College of Law. I am blessed to have an amazing family who encourages me every step of the way. I could not be more grateful for their constant love and support. Thank you to the members and staff of the Florida Law Review for their dedication during the editing and publication process. A special thank you to Professor Amy Mashburn for her invaluable insights. 1 Rehm: A Proposal for Settling the Interpretation of Florida’s Proposals Published by UF Law Scholarship Repository, 2012 1812 FLORIDA LAW REVIEW [Vol. 64 INTRODUCTION 1812 I. THE HISTORY OF PROPOSAL FOR SETTLEMENT PROVISIONS 1815 A. An Overview of Florida Statutes Section 768.79 ........ 1815 B. An Overview of Florida Rule of Civil Procedure 1.442 1818 C. An Overview of Joint Proposals for Settlement 1820 II. THE DEMISE OF JOINT PROPOSALS FOR SETTLEMENT 1822 A. Strict Construction at Odds with the Court’s Interpretive Standard 1826 B. Derogation of the Common Law Doctrine as Grounds for an Exception 1828 C. Penal Nature as Grounds for an Exception 1830 III. CONSTITUTIONAL SEPARATION OF POWERS IMPLICATIONS .. 1831 IV. COMPARATIVE ANALYSIS OF NEVADA’S PROPOSALS FOR SETTLEMENT PROVISIONS 1835 CONCLUSION 1837