How Can a Florida Surety Recover its Attorney Fees from the Bond Claimant?

Florida sureties rarely win attorneys’ fees. Up until a few weeks ago, a good strategy to try to make your opponent pay your fees and costs was to quickly send a settlement proposal, citing Fla.Stat. 768.79.

There used to be a few old Florida appellate decisions still holding strong for the idea that a litigant could shoot off an early settlement offer and trigger the fee-shifting statute. (See Kuvin v. Kevin Ladders for the old, recently overruled approach).

Not anymore.

Unless the offer is made within the admittedly funky time frame set forth by Fla.R.Civ.P. 1.442(b), it is premature, void ab initio, and, according to the latest cases, there will be no shifting of attorneys’ fees.

The most recent appellate cases stand for the proposition that a Florida surety cannot expose a claimant to the surety’s attorneys’ fees unless the surety strictly adheres to the many requirements set forth in rule 1.442. This includes waiting at least 90 days after the case was filed before sending out a statutory settlement offer.

The pre-2014 cases holding a litigant could still recover attorneys’ fees despite sending an early offer of judgment are no longer good law.

The central rationale of the new cases is the fee-shifting statute is in derogation of the common law, i.e. the American Rule that litigants usually pay for their own lawyer. Florida cases generally strictly construe statutes that spoil tried and true traditions. The offer of judgment statute is a classic example of upsetting the common law. As such, those that want to take advantage of making their opponent pay for all of the lawyers must adhere to the statute’s many prerequisites, many of which may seem contrary to common sense.

The case that settles the issue is Design Home Remodeling Corp. v. Santana, 146 So.3d 129 (Fla. 3d DCA 2014) (proposal for settlement made 60 days after defendant was added violated 90 day requirement of rule 1.442(b) and did not allow defendant to recover attorneys’ fees under Fla.Stat. 768.79). The Fourth District Court of Appeal followed the same rationale a few months prior in Regions Bank v. Rhodes, 126 So.3d 1259 (Fla. 4th DCA 2013).

Florida District Court of Appeals Area Map Where Appellate Case Law is Binding

Third District Court of Appeals cases are binding in Miami. Fourth District decisions are precedential in Broward and Palm Beach County.

Florida Rule of Civil Procedure 1.442(b), which must be strictly complied with for a surety to be able to expose a claimant to the surety’s attorneys’ fees and costs, requires the following as of February 2015:

A proposal to a defendant shall be served no earlier than 90 days after service of process on that defendant; a proposal to a plaintiff shall be served no earlier than 90 days after the action has been commenced. No proposal shall be served later than 45 days before the date set for trial or the first day of the docket on which the case is set for trial, whichever is earlier.

Another rationale the courts invoked in holding the time frame quoted above must be carefully adhered to is the fact that the fee-shifting statute is considered a penalty for a party who does not accept a reasonable settlement proposal. To subject the opposing party for not settling, the offering party must first faithfully follow all of the statutory requirements. The mandatory procedure includes more than just serving an offer within the correct time frame. But the other requirements to successfully make the other party pay your attorneys’ fees are beyond the scope of today’s discussion.

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