WILLIAM A. LIEFF, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF EDWARD S. LIEFF, DECEASED, AND ON BEHALF OF HELEN LIEFF, THE SURVIVING SPOUSE OF EDWARD L. LIEFF, APPELLANTS,
v.
MARIA C. SANDOVAL, APPELLEE

Fla. 3d DCA | 1999-01-20
No. 98-2080
Before COPE, GREEN, and FLETCHER, JJ.
726 So. 2d 335 Florida District Court of Appeal, Third District (1999) Positive Treatment
Cited by 12 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

In this wrongful death action, the appellate court reversed the trial court's denial of attorney's fees and costs under Florida's offer of judgment statute. The court held that the trial court's findings that the offer lacked good faith were legally insufficient and that seeking attorney's fees is the intended purpose of the statute.


Holding

The appellate court held that the trial court erred in denying attorney's fees and costs. The trial court's two stated reasons—that Lieff planned to pursue a subsequent bad faith claim against the insurer and that Lieff made the offer solely to create a right to attorney's fees—do not constitute valid bases for finding lack of good faith under the statute.


Headnotes

[1] An offer of judgment made pursuant to section 768.79, Florida Statutes, is not made in bad faith simply because the offeror intends to pursue a subsequent bad faith claim…

[2] A litigant's intention to create a right to attorney's fees by making an offer of judgment under section 768.79, Florida Statutes, does not constitute bad faith.

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Key Quotes

“It is the carrot held out by the statute to encourage early settlements. If we were to conclude that it is bad faith to utilize section 768.79 to obtain the right to attorney's fees, then the legislative inducement, the reason section 768.79 exists, disappears into a judicial black hole.”

The court's core holding that the motive to obtain attorney's fees cannot constitute bad faith, as that motive is the statute's intended purpose.

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Facts & Procedural History

Lieff, as personal representative of Edward S. Lieff's estate, brought a wrongful death action against Maria C. Sandoval. Lieff served an offer to acc…

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Opinion of the Court
FLETCHER, Judge.

FLETCHER, Judge.

The plaintiff [Lieff] appeals the trial court’s denial of his post-trial motion for attorney’s fees and costs, which motion was made pursuant to the offer of judgment statute, section 768.79, Florida Statutes (1993). We reverse with instructions to the trial court to grant Lieffs motion.

During this wrongful death action brought by Lieff against Maria C. Sandoval, Lieff served on Sandoval an offer to accept judgment in the amount of $250,000, which offer Sandoval did not accept. The case proceeded to trial, the ultimate result of which was a judgment in Lieffs favor and against Sandoval for $700,000.1 This amount obviously met the requirement of section 768.79 for an award of attorney’s fees and costs, i.e., a judgment in Lieffs favor in an amount at least 25% more than the amount of his offer. As a consequence Lieff was entitled to “reasonable costs, including investigative expenses, and attorney’s fees, calculated in accordance with the guidelines promulgated by the supreme court, incurred from the date the offer was served.”2 § 768.79(6)(b); Knealing v. Puleo, 675 So. 2d 693 (Fla.1996).

Sandoval, however, contended that Lieffs offer was not made in good faith, thus invoking section 768.79(7)(a),3 which permits a trial court to disallow fees and costs where it concludes that the offer was not made in good faith.

The trial court agreed with Sandoval, setting out in its denial order its reasons for determining that Lieffs offer was not made in good faith.

We find that the trial court’s two stated reasons for the denial do not support his decision.

The trial court found first that even though Lieff had served a perfectly valid offer, he did not intend it (if accepted) to terminate the litigation (as the statute intends) as Lieff planned to pursue a subsequent “bad faith” claim against Sandoval’s insurer.

However, it is clear that this action against Sandoval would have terminated had Sandoval accepted Lieffs offer, thus accomplishing the intent of section 768.79 of bringing about earlier conclusions to litigation. In fact, acceptance by Sandoval of Lieffs offer would have terminated this action at least four years earlier, made unnecessary the week-long jury trial, and avoided both the earlier appeal in which the $700,000 judgment against Sandoval was affirmed, see Sandoval v. Lieff, 705 So. 2d 717 (Fla. 3d DCA 1998), and, obviously, this appeal.

The trial court’s second (and final) reason given for the denial is a finding that Lieff served the offer for the sole reason of creating a right to attorney’s fees if the offer was not accepted by Sandoval. The creation of the right to attorney’s fees is the reason, or among the reasons, why any litigant makes an offer under section 768.79. It is the carrot held out by the statute to encourage early settlements. If we were to conclude that it is bad faith to utilize section 768.79 to obtain the right to attorney’s fees, then the legislative inducement, the reason section 768.79 exists, disappears into a judicial black hole.

Accordingly, the order appealed is reversed and the cause remanded with instructions to the trial court to grant Lieffs motion for attorney’s fees and costs.

. Sandoval has been without resources to pay either the $250,000 or the $700,000. Her insurance policy’s limitation is $10,000. What the future will bring as far as her financial status is, of course, presently unknown and up to fate.

. Regardless of the offer to accept judgment, as the prevailing party Lieff is entitled to recover his costs. § 57.041, Fla. Stat. (1993); Bridges v. Newton, 556 So. 2d 1170, 1171 n. 1 (Fla. 3d DCA 1990), disapproved on other grounds, TGI Friday’s, Inc. v. Dvorak, 663 So. 2d 606, 613 (Fla.1995).

. Which reads:

“If a party is entitled to costs and fees pursuant to the provisions of this section, the court may, in its discretion, determine that an offer was not made in good faith. In such case, the court may disallow an award of costs and attorney’s fees."

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Citator

Cited By

  • Ryan v. Leonor Lobo de Gonzalez and Jorge Gonzalez, 841 So. 2d 510 (Fla. 4th DCA 2003)
    …settlements. If we were to conclude that it is bad faith to utilize section 768.79 to obtain the right to attorney’s fees, then the legislative inducement, the reason section 768.79 exists, disappears into a judicial black hole. Lieff v. Sandoval, 726 So. 2d 335, 336 (Fla. 3d DCA 1999); see also Wagner v. Brandeberry, 761 So. 2d 443, 446 (Fla. 2d DCA 2000) (whether an offer is made in good faith turns on whether the offeror had a reasonable foundation upon which to make his offer and whether it was made wit…
  • Wagner v. Brandeberry, 761 So. 2d 443 (Fla. 2d DCA 2000)
    …terdefendants. Id. at 1382-83. The court found the proposal for settlement binding as to the claims and parties it addressed, despite the fact that many of the parties would remain in the litigation in some capacity. Similarly, in Lieff v. Sandoval, 726 So. 2d 335, 336 (Fla. 3rd DCA 1999), the proposal addressed the claim against the tortfeasor but did not address the claim against the tortfeasor’s insurance carrier. Despite this, the court found that the plaintiff intended to settle the litigation between th…
  • Connell v. Floyd, 866 So. 2d 90 (Fla. 1st DCA 2004)
    …2000). See Sec. Prof'ls, Inc. v. Segall, 685 So. 2d 1381, 1382 (Fla. 4th DCA 1997) (holding proposal for settlement effective as to claims and parties it addressed, even though many of the parties would remain in the litigation); Lieff v. Sandoval, 726 So. 2d 335, 336 (Fla. 3d DCA 1999). The majority opinion finds no fault with the amount of the monetary offer, nor does rule or statute require more than a nominal amount. See City of Neptune Beach v. Smith, 740 So. 2d 25, 26-27 (Fla. 1st DCA 1999). -The rule…

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