Proposal for Settlement Florida Statute 768.79 & Rule 1.442 (2023)

Proposal for Settlement Florida Statute 768.79 & Rule 1.442 (1)

Civil litigation in Florida can be a long process filled with ambiguities and questions regarding the resolution of a case. In an effort to control the outcome of a civil action, a party may use a proposal for settlement in Florida to avoid a court’s final judgment.

Our guide explains how proposals for settlement work in Florida along with other important considerations and requirements for using them in litigation.

Table of Contents

What Is a Proposal for Settlement in Florida?

A proposal for settlement in Florida (PFS) is the process in which a party to a civil action makes an offer to settle the case before final judgment. You can find the rules for settlement proposals under Florida rules of civil procedure 1.442 and Fla Stat. 768.79.

During the trial court process, you will likely hear about PFS legal terms and other topics related to an offer of settlement in Florida. These legal rules and procedures exist to provide structure around the settlement of a legal claim and to encourage parties to resolve matters prior to trial. This incentive exists to promote efficient use of court resources and to discourage parties from not making settlement offers in good faith.

Is a Florida Offer of Judgment the Same Thing?

Although related to a proposal for settlement, an offer of judgment Florida is a distinct legal term that details the potential consequences of rejecting a proposed settlement. The offer of judgment creates different potential outcomes for a case based on how the terms of a judgment compare to the terms previously offered in the proposal for settlement.

(Video) Attorneys Fees and Joint Proposals for Settlement

Defendants and plaintiffs (along with their attorneys) must have a strong familiarity with a Florida offer of judgment when making or rejecting a settlement proposal. As explained in more detail below, Florida’s statute and rules of civil procedure force parties to weigh the risks of settling against the risk of proceeding to trial and final judgment.

How Does a Proposal for Settlement Work in Florida?

A Florida proposal for settlement can be a somewhat technical process because of its many formal requirements. These requirements focus on the substance of the settlement offer along with various timing elements in relation to the other parts of a civil action (e.g., service of process, trial, etc.).

Generally, either party (i.e., plaintiffs or defendants) may serve the other with a proposal for settlement. The other party then has the opportunity to accept or reject the proposal. If accepted, the case resolves. However, if either party declines a proposed settlement, then it may affect the overall net judgment from the case.

The Framework of a Proposal for Settlement Under Florida Statute 768.79

Florida Statutes 768.79 imposes liability for attorney’s fees and other costs associated with pursuing a legal claim on a party that rejects a settlement offer when the court or jury’s judgment is within a certain range.

When a Plaintiff Rejects an Offer of Judgment Pursuant to FS 768.79

A plaintiff that rejects a defendant’s settlement proposal under 768.79 Florida Statutes incurs the risk of a court offsetting the plaintiff’s judgment by defendant’s attorney’s fees and other costs. In order for FS 768.79 to apply, the plaintiff’s award must be at least 25% less than the defendant’s settlement offer.

The court may also enter a judgment against the plaintiff for the defendant’s award of attorney’s fees if the judgment is for no liability (or if the defendant’s attorney’s fees are more than the plaintiff’s award).

The Risk of a Defendant’s Failure to Accept Under the Florida Proposal for Settlement Statute

Conversely, when a defendant declines a plaintiff’s proposal for settlement they may be liable for the plaintiff’s reasonable costs and attorney’s fees incurred from the date of the demand. For this rule to apply, the plaintiff must recover a judgment award that is at least 25% greater than the offer to the defendant.

What Are Reasonable Costs and Attorney’s Fees under FS 768.79?

The Florida Supreme Court produces guidelines to help trial courts and parties calculate and determine the reasonableness of an award of attorney’s fees and costs (e.g., filing fees, investigative expenses, etc.). Florida statute 768.79 specifically mentions that a court may incorporate the following factors into its award determination among others:

  • The apparent merit or lack thereof of a claim
  • The amount of offers made by the parties to a case (along with the substance of those offers)
  • The closeness of questions of fact and law (i.e., how frivolous were the claims)
  • Whether the offeror unreasonably refused to provide the offeree with information needed to assess the settlement offer

Other Requirements for Settlement Offers Pursuant to 768.79 Florida Statutes

The offeree of a proposal for settlement has 30 days to accept an offer before Florida’s statute 768.79 could apply to a court’s final judgment. Additionally, offerors must keep the following requirements in mind when making an offer of settlement to an opposing party:

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  • The offer must be in writing and state its application to FS 768.79
  • The written offer must state the name of the offeror and the name of the offeree
  • State the amount offered to settle a punitive damages claim with particularity
  • State the total amount of the offered settlement

In an effort to encourage additional attempts at settlement, Florida does not preclude parties from making other settlement proposals after the rejection of an initial offer. Parties also have the power to withdraw an offer so long as the offeror serves notice of the withdrawal prior to the offeree filing an acceptance of the offer.

Florida Rule of Civil Procedure 1.442 for Settlement Proposals

Florida rule 1.442 is what governs the requirements surrounding a formal settlement proposal by a party during litigation. Specifically, a Florida rules of civil procedure proposal for settlement must comply with the following:

  • must be in writing and state the applicable Florida law (i.e., Florida rule 1.442)
  • name the offeror and offeree of the proposal
  • state that the settlement would resolve damages otherwise awarded as part of the legal claim of the case
  • state with particularity any settlement amounts attributable to punitive damages
  • state all relevant conditions and non-monetary terms of the settlement (e.g., issuance of a formal apology, Non-disclosure, etc.)
  • address whether the settlement accounts for attorney’s fees and if attorney’s fees are part of the legal claim

Similar to FS 768.79, an offeror can withdraw a settlement proposal under Florida rule 1.442 by delivering written notice of withdrawal prior to the offeree accepting. The effect of a successful withdrawal is the voiding of the settlement proposal. Additionally, evidence of a proposed settlement or its acceptance is only admissible for purposes of its enforcement or for imposing sanctions (i.e., as a part of a trial court, district court of appeals, or another appellate case).

Proposal for Settlement Insurance

Florida’s offer of judgment statute creates the risk of additional liability to parties that reject a reasonable settlement offer based on the actual judgment obtained. To mitigate the risk of rejecting an offer, parties can purchase related insurance through an insurance company.

An insured party can file an insurance claim after court’s judgment results in liability of attorney’s fees and costs to the other party. Being able to claim on the insurance can limit the need for extra litigation to collect on party’s liability under Florida’s offer of judgment statute.

Florida Proposal for Settlement Form

No standard Florida proposal for settlement form exists through the state or district courts. However, parties must comply with the formal requirements of FS 678.79 and Rule 1.442 (summarized above) to properly enforce any subsequent claim for attorney’s fees and costs.

Notice of Acceptance of Proposal for Settlement Florida

A party can only provide its notice of acceptance of a proposal for settlement through the delivery of a written notice to the opposing party and local court. Notice of acceptance must occur within 30 days after the initial service of the proposal for settlement.

Florida Proposal for Settlement Timing

Florida rule of civil procedure 1.442 also places restrictions around the timing of a party’s decision to serve an opposing party with a proposed settlement. For service to a defendant, the plaintiff may not serve the proposal any earlier than 90 days after service of process on the defendant. Service to a plaintiff can happen no earlier than 90 days after commencing the civil action.

However, rule 1.442 limits service of a settlement proposal from either party to no later than 45 days before the earlier of the date set for trial or the first day of the docket on which the case is set for trial.

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Proposal for Settlement Florida Example

To illustrate Florida’s proposal for settlement framework, let’s assume Alice filed a personal injury claim against Bob for a slip and fall accident on his property.

Before trial, Bob sends Alice a proposal for settlement under FS 678.79 and Rule 1.442. The proposal offers to pay Alice $50,000 for her injuries. Alice thinks about the offer for a few days but ultimately rejects it because she thinks her claim is worth way more than Bob’s offer.

The case proceeds to trial and a jury awards Alice $25,000. Because Alice’s final judgment was more than 25% less than Bob’s settlement offer, Alice is now liable for Bob’s attorney’s fees and other costs. Bob had $15,000 in attorney’s fees, which the court can subtract from Alice’s award, netting her a final judgment of $10,000.

Need Help with Proposal for Settlement Florida Law?

A Florida proposal of settlement can be an effective technique for incentivizing the resolution of a case. Alternatively, it can pose additional risks for taking a case to trial. The litigators at Cueto Law Group rely on their legal skill and experience to help clients navigate issues with FS 678.79 and Rule 1.442 as it relates to their civil case.

Contact Cueto Law Group today for a free consultation about Florida proposal for settlement.


Below are some brief answers to other common questions about Florida’s proposal for settlement system.

When can I file a proposal for Settlement in Florida?

When you can file a proposal for settlement in Florida will depend on if you are the plaintiff or defendant. Generally, you can file 90 days after either service of process on the defendant or the commencement of the action. However, no proposal can happen within 45 days of trial.

How long is a PFS good for in Florida?

A PFS Florida is good for 30 days once delivered to the opposing party. The offeree must accept the settlement within those 30 days, otherwise, the court considers the offer rejected. One party’s rejection of a PFS does not preclude later PFSs being made afterward.

How do you write a proposal for a settlement?

A proposal for settlement must comply with certain requirements listed in FS 768.79 and Rule 1.442 such as being written and stating other items necessary for a party to evaluate the offer (e.g., amount of settlement, statutory references, etc.). Usually, a proposal for settlement comes in letter form.

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How does a proposal for settlement work in Florida? ›

A proposal for settlement in Florida can be filed by either party to a lawsuit. A valid proposal can serve to create an opportunity for your client to recover his or her fees incurred in prosecuting or defending a claim where otherwise no contractual or statutory fee claim exists.

What is the deadline to file a proposal for settlement in Florida? ›

The Defendant can file a Proposal for Settlement against the Plaintiff 90 days after the lawsuit was filed with the Court. The deadline for filing Proposals for Settlements for all parties is 45 days before the first day of the trial docket.

What is a Danis offer Florida? ›

As stated in Danis, the purpose of the offer of settlement statute is to ensure that an insured or beneficiary cannot continue to incur attorney's fees and costs after a legitimate offer of settlement.

How does an offer of judgment work in Florida? ›

An offer of judgment is a formal, written proposal made from one party to the other. The offer states the terms at which the party making the offer is willing to resolve the case. The other side has 30 days to accept the offer, or it is considered rejected.

What is a proposed settlement? ›

(6) Proposed settlement . — The term “proposed settlement” means an agreement regarding a class action that is subject to court approval and that, if approved, would be binding on some or all class members.

What does PFS mean in legal terms? ›

PFS means personal financial statement; Sample 1Sample 2Sample 3.

How do you prove reasonableness of attorney fees in Florida? ›

But how is that proven? In Florida, when a party is seeking an award of attorneys' fees, generally, expert testimony is needed to establish the reasonableness of said fees. However, there are certain exceptions. This depends upon the type of case, the court in which the case is filed, and the parties involved.

When can you file offer of judgment Florida? ›

Florida Statute §45.061 – The demand for judgment/settlement cannot be made earlier than sixty (60) days after the service of the complaint and may not be made after sixty (60) days before trial. A counter-offer may be made within forty-five (45) days before trial.

Can a plaintiff make an offer of judgment? ›

It allows a defendant to issue an “offer of judgment” to a plaintiff to settle the case. It is designed to create a pause with the plaintiff to assess her case and decide whether she wants to proceed forward with the litigation or resolve it.

How do you propose a settlement offer? ›

Treat the letter as a contract between you and your creditor. Include your personal information and account number for easy identification. You'll need to outline the amount you can pay and what you expect in return. If you want to propose a good settlement offer, consider offering around 30 percent of what you owe.

Should I accept a settlement agreement? ›

In my experience it is generally not a good idea to reject the offer of a settlement agreement without even trying to negotiate the terms first – unless you make a counter-offer you won't know whether what you want to negotiate is achievable. Almost always try and negotiate the terms first.

How long do you have to accept a PFS in Florida? ›

A PFS Florida is good for 30 days once delivered to the opposing party. The offeree must accept the settlement within those 30 days, otherwise, the court considers the offer rejected. One party's rejection of a PFS does not preclude later PFSs being made afterward.

What does PFS mean on bank statement? ›

When it comes to long-term financial planning, preparing a Personal Financial Statement (PFS) is one of the best ways to assess your current situation and keep yourself on track to meet goals. The PFS is a relatively simple document that lists what you own (assets) and what you owe (liabilities).

What is plaintiff fact sheet? ›

It is a document where the Plaintiff can record as many events of their own. It helps the attorneys to analyze the case before preparing the case and expert witnesses by giving an outline of the case that is being litigated.

What are reasonable attorney fees in Florida? ›

The typical lawyer in Florida charges between $199 and $420 per hour. Costs vary depending on the type of lawyer, so review our lawyer rates table to find out the average cost to hire an attorney in Florida.

How do I dispute an attorney fee in Florida? ›

The Fee Arbitration Program is an informal, free service provided by The Florida Bar to resolve fee disputes between attorneys and clients and between attorneys. The arbitration process may be initiated by either the client or the attorney and may be used instead of a lawsuit to settle a fee dispute.

Can a defendant claim costs? ›

As the defendant, loss of earnings cannot be recovered as they are not 'expenses properly incurred by him in the proceedings. ' Ordinary witness subsistence allowance and travelling expenses are the only recoverable expenses for a defendant. Other witnesses of fact can claim their expenses in the same way.

Can a Rule 68 offer be withdrawn? ›

This ruling, it is submitted, was clearly correct. Defense counsel argued that offers under Rule 68 are analogous to ordinary offers of contract, and under the time honored rule may be withdrawn at any time prior to acceptance.

Can you make a 998 offer in federal court? ›

In employment cases, either side can issue a 998, but the plaintiff's offer lacks any sharp teeth (only the defendant can issue an offer under the federal counterpart Federal Rules of Civil Procedure Rule 68.). Unlike personal-injury cases, experts are not as common and many cases are tried without expert testimony.

What is the rule of 68? ›

(a) Making an Offer; Judgment on an Accepted Offer. At least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued.

What is the rule of 64? ›

(a) Remedies Under State Law—In General. At the commencement of and throughout an action, every remedy is available that, under the law of the state where the court is located, provides for seizing a person or property to secure satisfaction of the potential judgment.

What is the Rule 36? ›

An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny.

How do you collect money from a Judgement in Florida? ›

Return to the Clerk of the Court that originally issued your judgment and ask for a Writ of Execution. Deliver the Writ to the sheriff's department for the county where the debtor's property is located. Provide the sheriff's department with: A deposit to cover their fees and costs.

What happens if a defendant does not pay a judgment in Florida? ›

As a judgment creditor, you can have a lien placed on the Defendant's property which may prevent him or her from selling the property without paying the judgment. You can also have the sheriff seize and sell any non-exempt property the Defendant owns, garnish non-exempt wages, or take non-exempt bank accounts, etc.

What happens after a default Judgement is issued in Florida? ›

Generally, a default allows you to obtain an earlier final hearing to finish your case. Once the default is signed by the clerk, you can request a trial or final hearing in your case.

Can you be forced to sell your home to pay for a judgment? ›

The court judgment can allow creditors to place a lien on an individual's car, other personal property, or real property. When this happens, creditors may be able to force the sale of the property and use the proceeds from the sale to pay off the outstanding judgment.

Can debt collectors seize your bank account in Florida? ›

A debt collector ultimately could garnish your bank account or your wages if you live in Florida. The first thing they would need to do is file a lawsuit against you for the debt, once they obtained a judgment, they can record that judgment and proceed with debt collection.

What assets are protected in a lawsuit in Florida? ›

Florida is considered one of the best states for asset protection because of its generous creditor exemption laws. Florida law provides unlimited homestead protection and protects tenants by entireties assets, head of household wages, retirement accounts, annuities, life insurance, disability insurance, and more.

Do judgments attach to property in Florida? ›

A judgment, order, or decree does not become a lien on real property unless the address of the person who has a lien as a result of such judgment, order, or decree is contained in the judgment, order, or decree or an affidavit with such address is simultaneously recorded with the judgment, order, or decree.

What property is exempt from creditors in Florida? ›

Some of the most important assets that are exempt from creditors in Florida include: Head of household wages. Annuities and life insurance proceeds and cash surrender value. Homestead (up to 1/2 acre in a city and 160 acres in the county)

How long are judgments valid in Florida? ›

The Length of a Judgment

A judgment is good for 10 years and Florida allows a creditor to “renew” a judgment before the expiration of the 10 years for an additional 10 years, thus giving a judgment almost unending life.

Can my wife's bank account be garnished for my debt? ›

a judgment creditor of your spouse can garnish your joint accounts, and. if you have your own separate bank account and a judgment is taken against your spouse, that creditor can also garnish your separate account to pay for your spouse's debt.

How do I fight a default Judgement in Florida? ›

Under Florida Rule of Civil Procedure 1.540, a person can seek relief from a default judgment for the following reasons: mistake, inadvertence, surprise, or excusable neglect. newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing.

How can I avoid paying a civil Judgement? ›

There are four main ways to not pay a judgment: (1) use statutory exemptions, (2) use protected assets, (3) negotiate with the creditor, or (4) file bankruptcy.

What happens after default judgment is granted? ›

If you obtain a default judgment and get the judge to sign your paperwork, you then need to make a copy of the paperwork and serve it to the defendant. After you notify the defendant of the judgment, you can begin to enforce the judgment.

Can someone put a lien on my house without me knowing? ›

Can a lien be placed on your property without you knowing? Yes, it happens. Sometimes a court decision or settlement results in a lien being placed on a property, and for some reason the owner doesn't know about it– initially.

Can someone put a charge on my property without me knowing? ›

When your creditor applies for an interim charging order, they'll also register a charge on your property at the Land Registry. This means you can't sell your property without your creditor knowing about it.

Can a credit card company put a lien on my house in Florida? ›

In Florida, an unsecured judgment creditor is barred from foreclosing on the homestead property of a debtor pursuant to Art. V of the Florida Constitution.

1. Standing and Attorney's Fees in Debt Collection and Foreclosure
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