Proposals For Settlement-Practice Pointers For The Construction Attorney

Much like an old carnival roller coaster, proposals for settlement under Fla. R. Civ. P. 1.442 create an environment of mixed fear and excitement in the bumpy ride of civil litigation. Volumes have been written about proposals for settlement, and an exhaustive treatise is truly impossible to accomplish in any bar journal article, however the following are a few practical pointers.

When to begin.

One of the big questions we must first consider is when to serve a proposal for settlement ("PFS"). A PFS may not be served on a defendant until 90 days after service of the particular defendant; a plaintiff may not be served with a PFS until 90 days after the action has commenced.1 It is always a good idea to at least consider a PFS early in the litigation as it can certainly pay dividends after a successful trial or dispositive motion. If you have an early grasp of liability and damages, that may be a good time to serve a solid proposal. On the flip side, if you do not have a good grasp of damages or liability, you should probably hold off. By filing what may seem like a conservative yet uninformed proposal, you may inadvertently prompt your opponent to file a proposal against you.

The claim game.

Often it is easy to think of proposals only in the global sense, for all claims in the suit. However proposals can be served as to individual counts as well.2 That can be a helpful option especially in construction cases where it is not uncommon for six or seven legal theories to be raised on essentially the same set of facts, some of which have less merit than others. Thus it may be beneficial to target the less viable claims with a PFS.

Defanging vicarious liability.

Generally speaking, a joint PFS must specify the amount attributable to each party.3 Recently, however, Rule...