HM&B Press Release: Can We Still PFS IN FPP?

Recent changes to Rule 1.442 by the Florida Supreme Court have raised questions about whether Florida insurers in the First Party Property (FPP) space could continue to obtain a Release when serving a Proposal for Settlement (PFS) in litigated matters. The changes, which took effect on July 1, 2022, state that a proposal for settlement cannot include “nonmonetary terms, with the exceptions of a voluntary dismissal of all claims with prejudice.” This amendment aims to align Rule 1.442 with Florida’s Proposal for Settlement/Offer of Judgment Statute (§ 768.79), which only considers monetary amounts.

However, the amendment does provide exceptions for “a voluntary dismissal of all claims with prejudice and any other nonmonetary terms permitted by statute.” The Florida Supreme Court noted that certain statutes, such as Florida Statute section 70.001(4)(c), specify nonmonetary terms that can be included in a settlement offer.

According to Florida Statute § 627.4265, “if a person and an insurer have agreed in writing to settle a claim….this payment can be conditioned upon the execution of a mutually agreeable release.”

A Proposal for Settlement is a written offer, and acceptance must be in writing, resulting in the settlement of the claim. Thus, in accordance with the language of Florida Statute 627.4265, and under the language of the Rule 1.442 FRCP, providing for exceptions “of a voluntary dismissal of all claims with prejudice and any other nonmonetary terms permitted by statute,” a Release, as a non-monetary term, remains a viable option within the FPP space.

Recently, a court in Lee County, Florida upheld a client’s Proposal for Settlement with the Release attached using the strategy outlined including a Release as a non-monetary term, ruling that the defendant was entitled to collect fees and costs after winning a summary judgment action. Additionally, on April 15, 2024, a court in Escambia County upheld the Proposal for Settlement under the same premise. A favorable verbal ruling from Collier County is also pending a written order to enforce the Proposal for Settlement in accordance with § 627.4265 and Rule 1.442.

Nikki Hawkins has been instrumental in navigating the changes to Rule 1.442 and employing Florida Statute § 627.4265 to allow Florida Insurers to continue to utilize a Release as a non-monetary term to the Proposal for Settlement in the first party space. With her innovative approach and deep understanding of the law, she successfully developed a statutory language specific PFS for litigated matters. Nikki’s expertise and proactive strategy have led to significant successes for clients in the FPP space, positioning her as a leading legal mind in this area of practice.

Nikki Hawkins, Partner and Chair of First Party Property at Hamilton, Miller & Birthisel.

For more than a decade, Nikki Hawkins has represented insurance companies in the defense of a wide variety of lines of coverage to include bad faith.  She has successfully litigated breach of contract, liability and bad faith actions stemming from insurers’ handling of personal injury and property damage matters.  Moreover, Nikki has assisted insurers with bad faith issues in both pre-suit and litigation matters. Nikki is currently working as Extra-Contractual (EC) counsel for insurance carriers in the state of Florida.