Property Casualty Focus

On March 24, 2023, Gov. Ron DeSantis signed House Bill 837, “Civil Remedies,” into law. While other articles have discussed the wide-ranging effects of this new law, this post focuses specifically on how the law alters Florida’s proposal for settlement landscape.

Before March 24, proposals for settlement, sometimes referred to as offers of judgment, were exclusively governed by Florida Statutes section 768.79 and Florida Rule of Civil Procedure 1.442. No longer.

Section 768.79 applies to “any civil action for damages filed in the courts of” Florida. Case law confirms that a proposal for settlement cannot be served where an action includes monetary and non-monetary relief or only non-monetary relief. But there is an exception. If an action seeks damages and includes a request for a declaratory judgment that essentially sought money damages, an offer could be served in such an action.

Now, a second exception exists. Florida chapter 2023-15, section, 5, adds section 624.1552 to the Florida Insurance Code. Section 624.1552 provides that “[t]he provisions of s. 768.79 apply to any civil action involving an insurance contract.” The important change in Florida’s proposal for settlement landscape comes through the Legislature omitting “for damages” and replacing it with “involving an insurance contract,” as the phrase appears in section 624.1552.

Three principles of law combine to suggest the result of that change. First, the “Legislature is presumed to know the state of the law in passing statutes, and consequently, the legislation is to be construed on the premise that the particular statute in question is to be applied relative to other statutes affecting the same subject matter.” The Legislature is therefore presumed to know that courts had construed section 768.79 as only applying to actions for damages. Second, courts must presume that the Legislature said what it meant, and meant what it said. Courts must therefore give meaning to the Legislature’s choice of words: section 768.79 applies to “any civil action involving an insurance contract.” And third, “when two statutes are in conflict, the later promulgated statute should prevail as the last expression of legislative intent.” So, to whatever extent section 768.79 and the newly enacted section 624.1552 conflict, case law suggests the latter should control.

Thus, by expressly having the provisions of section 768.79 apply to “any civil action involving an insurance contract,” it is likely a court would determine that the Legislature meant to override the limitation found in section 768.79 in the context of a civil action involving an insurance context. Whether a plaintiff in such a case is seeking damages or declaratory, injunctive, equitable, or some other form of non-monetary relief, a party to such an action can now make a proposal for settlement.

Broadening the use of proposals for settlement in civil insurance cases is a powerful new tool. The expansion removes the complexity of determining whether the true relief of a declaratory judgment claim relating to an insurance contract was damages or some other form of relief, and opens the door to more liberal use of proposals for settlement, which are meant to encourage settlements. “To achieve this purpose, courts may award attorney fees against a party who declined to accept a reasonable offer and who unnecessarily continues the existing litigation.”

Parties and courts alike should anticipate greater use of proposals for settlement in insurance cases.