Date: 06-18-2022

Case Style:

State Farm Automobile Insurance Company vs James Lightfoot and Marilyn Roseanne Hunt

Case Number: 1D20-2285

Judge:

Harvey L. Jay, III

Katie L. Dearing

Court:

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA

On appeal from The e Circuit Court for Duval County

Plaintiff's Attorney: Anthony J. Russo, John Walter Weihmuller, and James Michael
Shaw of Butler Weihmuller Katz Craig LLP

Defendant's Attorney:

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Description:

Tallahassee, Florida - Personal Injury lawyer represented Appellant with seeking to reverse a final judgment in a automobile negligence action.

In 2011, Ms. Hunt rear-ended Mr. Lightfoot. Mr. Lightfoot
walked away from the accident with minor knee and neck pain,
believing he was “going to be okay.” In 2012, he sued Ms. Hunt for
injuries he claimed to have sustained in the accident. Ms. Hunt
held a $50,000 bodily injury liability insurance policy with appellee
State Farm Automobile Insurance Company, which undertook her
defense.
In 2015, Mr. Lightfoot served a PFS to Ms. Hunt that offered
to dismiss his claims against her if she paid him $1.3 million in
cash. Ms. Hunt did not accept the PFS within thirty days,
rendering it rejected. See § 768.79(1), Fla. Stat.; Fla. R. Civ. P.
1.442(f)(1). After multiple continuances, the case proceeded to trial
in 2019, wherein the jury found Ms. Hunt solely negligent and
awarded Mr. Lightfoot over $11 million in damages – $10 million
of which represented non-economic damages. Ms. Hunt
unsuccessfully appealed the final judgment, which was affirmed
by this Court in Hunt v. Lightfoot, 313 So. 3d 142 (Fla. 1st DCA
2020).
Mr. Lightfoot then sought attorney’s fees and costs pursuant
to section 768.79 and Florida Rule of Civil Procedure 1.442. Ms.
Hunt initially conceded entitlement, but later moved for
reconsideration, arguing the PFS was invalid and unenforceable
because it was impossible to accept and illusory because it was not
3
made in good faith. The trial court held a hearing in which Mr.
Lightfoot’s counsel argued Ms. Hunt’s inability to pay $1.3 million
was irrelevant and unknowable, conjecturing Ms. Hunt could have
won the Powerball recently. In reality, no one at the hearing
doubted Ms. Hunt’s inability to produce $1.3 million cash within
thirty days to accept the PFS. Nonetheless, the trial court upheld
the PFS, concluding Ms. Hunt’s inability to pay was not
determinative of the offer’s validity.1 The court entered a final
judgment assessing $1,415,254.55 in attorney’s fees and taxable
costs against Ms. Hunt.2 Ms. Hunt does not challenge the award of
costs, which we affirm. The appeal of the fee award follows.
II.
The legislature enacted section 768.79 to “deter parties from
rejecting presumably reasonable settlement offers by imposing
sanctions through costs and attorney’s fees.” Se. Floating Docks,
Inc. v. Auto-Owners Ins. Co., 82 So. 3d 73, 79 (Fla. 2012). Section
768.79 and the implementing rule 1.442 must be strictly construed
because they are in derogation of the common law rule that each
party pays its own fees. Attorneys’ Title Ins. Fund, Inc. v. Gorka,
36 So. 3d 646, 649 (Fla. 2010). The penal nature of this type of fee
award also means strict construction is applied in favor of the
party against whom the penalty is imposed. Tierra Holdings, Ltd.
v. Mercantile Bank, 78 So. 3d 558, 563 (Fla. 1st DCA 2011).
Section 768.79(1) provides in relevant part:
1 The court implicitly found the offer was made in good faith.
See Stofman v. World Marine Underwriters, Inc., 729 So. 2d 959,
960 (Fla. 4th DCA 1999) (recognizing an express finding is only
required when a court finds an offer was not made in good faith).
2 The court joined State Farm in the final judgment on
attorney’s fees and costs. In case number 1D20-2285, State Farm
argued it was improperly joined, its policy did not provide
indemnity for Ms. Hunt’s attorney fee liability, and the PFS was
unenforceable.
4
If a plaintiff files a demand for judgment which is not
accepted by the defendant within 30 days and the
plaintiff recovers a judgment in an amount at least 25
percent greater than the offer, she or he shall be entitled
to recover reasonable costs and attorney's fees incurred
from the date of the filing of the demand.
The statute automatically creates an entitlement or “mandatory
right” to attorney’s fees when a PFS satisfies the statutory and
procedural requirements. See Anderson v. Hilton Hotels Corp.,
Inc., 202 So. 3d 846, 856 (Fla. 2016). The entitlement translates to
a fee award so long as the plaintiff recovers a judgment that is 25%
greater than the offer amount. Mr. Lightfoot satisfied all these
conditions.
III.
Ms. Hunt argues the fee award should be reversed because the
PFS was not made in good faith. Section 768.79(7)(a) and rule
1.442(h)(1) allow a trial court to reject fees if it determines that a
proposal was not made in good faith. We review the trial court’s
decision on good faith for an abuse of discretion. Hayes Robertson
Grp., Inc. v. Cherry, 260 So. 3d 1126, 1133 (Fla. 3d DCA 2018).
The offeree has the burden of showing a PFS was not made in
good faith. Gawtrey v. Hayward, 50 So. 3d 739, 743 (Fla. 2d DCA
2010) (citing TGI Friday’s, Inc. v. Dvorak, 663 So. 2d 606, 613 (Fla.
1995)). The reasonableness of an offeree’s decision to reject a
proposal is irrelevant to the issue of good faith. TGI Friday’s, 743
So. 2d at 611. Good faith turns on whether the offeror “had a
reasonable foundation to make [his] offer and made it with intent
to settle the claim made against [him by the offeree] if the offer
had been accepted.” Id.
The trial court abused its discretion because it is clear to us
that this PFS was not made with an intent to settle the case. By
conditioning acceptance upon payment of $1.3 million in cash, the
offer was illusory as there was no real possibility Ms. Hunt could
accept. Mr. Lightfoot did not have to require actual payment and
could have allowed for acceptance followed by a judgment entered
against Ms. Hunt. See Alexandre v. Meyer, 732 So. 2d 44, 45 (Fla.
5
4th DCA 1999). By requiring Ms. Hunt to tender $1.3 million in
cash within thirty days to accept, Mr. Lightfoot chose to include an
impossible condition that was designed to fail.
We understand the trial court’s hesitance to consider Ms.
Hunt’s particular finances and ability to pay. See id. (“Section
768.79 does not require either ability to pay or payment in order to
accept a demand for judgment.”). But this case does not require an
evaluation specific to Ms. Hunt. We are confident very few
Americans could come up with $1.3 million cash within thirty
days. Even very wealthy individuals diversify their assets, and
very few would have that amount of expeditiously accessible
liquidity.
To be clear, we are not holding an offeror must consider an
offeree’s finances and ability to pay before tendering a PFS. Nor do
we take issue with the amount alone or the condition of actual
payment alone. Rather, it is the specific combination of $1.3
million “cash on the barrelhead” that renders this PFS illusory. If,
for instance, the PFS could have been accepted by signing a
promissory note for $1.3 million or by agreeing to have a judgment
entered for $1.3 million, it would be perfectly valid.
It is contrary to the purpose of section 768.79 to sanction Ms.
Hunt with over $1 million in attorney’s fees for an offer she could
not have possibly accepted. Cf. Gorka, 36 So. 3d at 651 (“A party
wishing to accept an offer should not be prohibited from doing so
and then subjected to costly litigation and possible sanctions under
rule 1.442 merely because a condition cannot occur[.]”). The PFS
was an illusory offer made without intent to fully settle the case.
The trial court abused its discretion in awarding fees where the
PFS was not made in good faith

Outcome: We REVERSE the judgment for attorney’s fees and costs in case
number 1D20-2303 and REMAND for proceedings not inconsistent
with this opinion.

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