Hoang Dinh Duong, M.D., Radiology Associates of Hollywood, P.A. and Truck Insurance Exchange v. Olivia Ziadie, as plenary guardian of the person and property of Francis Ziadie, incapacitated, Philip Ziadie and Paul Ziadie

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

HOANG DINH DUONG, M.D., RADIOLOGY ASSOCIATES OF
HOLLYWOOD, P.A. and TRUCK INSURANCE EXCHANGE,
Appellants,

v.

OLIVIA ZIADIE, as plenary guardian of the person and property of
FRANCIS ZIADIE, incapacitated, PHILIP ZIADIE and PAUL ZIADIE,
Appellees.

No. 4D11-1492

[December 17, 2014]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Patti Englander Henning, Judge; L.T. Case No. 04-3336
26.

Erik P. Bartenhagen of Hicks, Porter, Ebenfeld & Stein, P.A., Miami,
and Cindy L. Ebenfeld of Hicks, Porter, Ebenfeld & Stein, P.A., Hollywood,
for appellants Hoang Dinh Duong, M.D. and Radiology Associates of
Hollywood, P.A.

Bard D. Rockenbach, Andrew Harris and Adam J. Richardson of
Burlington & Rockenbach, P.A., West Palm Beach, and Crane A.
Johnstone of Sheldon J. Schlesinger, P.A., Fort Lauderdale, for appellees.

WARNER, J.

Following a jury verdict against the defendant/appellant Dr. Duong in
a medical malpractice action, the plaintiff/appellee moved for an award of
fees pursuant to a proposal for settlement. Dr. Duong claims that the
proposal was ambiguous and that it was an improper “all or nothing” offer
which did not allow him to settle the claims of individual plaintiffs,
contrary to Attorneys’ Title Insurance Fund v. Gorka, 36 So. 3d 646 (Fla.
2010). We reject Dr. Duong’s claim that the cover letter accompanying the
proposal for settlement made the proposal ambiguous. We also conclude
that the all or nothing proposal made by multiple offerors to a single offeree
is an acceptable proposal for settlement.
 Olivia Ziadie, acting as guardian of her son Francis Ziadie, brought
medical malpractice claims against Dr. Hoang Dinh Duong, M.D.,
Radiology Associates of Hollywood, P.A., and others. The complaint alleged
that Dr. Duong had negligently attempted to stent Francis’s carotid artery,
causing permanent paralysis. Olivia sought damages for Francis’s pain
and suffering, medical expenses, and loss of earning capacity. She also
sought damages for his children for permanent loss of his parental
services, comfort, companionship, and society.

Olivia had been appointed his plenary guardian due to his incapacity.
At the time the complaint was filed, Francis’s children were minors. Thus,
the complaint identified the plaintiff as: “OLIVIA ZIADIE, as plenary
guardian of the person and property of FRANCIS ZIADIE, incapacitated,
and for FRANCIS ZIADIE, as parent and legal guardian of PHILIP ZIADIE
and PAUL ZIADIE, his minor children[.]”

Prior to trial, Olivia made a proposal for settlement. Dr. Duong received
a letter notice of proposal together with a formal Proposal for Settlement.
The formal proposal outlined to whom it was made and its terms, providing
in pertinent part:

2. The party making the proposal is the Plaintiff, OLIVIA ZIADIE,
as plenary guardian of the person and property of FRANCIS
ZIADIE, incapacitated, and for FRANCIS ZIADIE, as parent
and legal guardian of PHILIP ZIADIE and PAUL ZIADIE, his
minor children.

3. The party to whom this proposal is made is the Defendant,
HOANG DINH DUONG, M.D. only.

……

5. The total amount of this proposal is ONE MILLION AND
00/100 DOLLARS ($1,000,000.00), as follows:

 NINE HUNDRED THOUSAND AND 00/100 DOLLARS
($900,000.00) for OLIVIA ZIADIE, as plenary guardian of
the person and property of FRANCIS ZIADIE, incapacitated;
 FIFTY THOUSAND AND 00/100 DOLLARS ($50,000.00) for
PHILIP ZIADIE, the minor son of FRANCIS ZIADIE; and
 FIFTY THOUSAND AND 00/100 DOLLARS ($50,000.00) for
PAUL ZIADIE, the minor son of FRANCIS ZIADIE.

……

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 9. If there is a judgment of liability as to this Defendant, HOANG
DINH DUONG, M.D., and if the Plaintiffs, OLIVIA ZIADIE, as
plenary guardian of the person and property of FRANCIS
ZIADIE, incapacitated, and for FRANCIS ZIADIE, as parent
and legal guardian of PHILIP ZIADIE and PAUL ZIADIE, his
minor children obtains a judgment against this Defendant for
at least twenty-five percent more than the offer made in this
proposal the Plaintiff will seek enforcement of sanctions
against this Defendant for attorneys [sic] fees and costs . . .

Dr. Duong did not accept the proposal. At trial, a jury found Dr. Duong’s
negligence was seventy-five percent the cause of Francis’s injuries, finding
another doctor twenty-five percent responsible. After the court granted
the defendants’ motion for setoff it entered judgment as follows: (1) for
Olivia, as guardian of Francis, $3,896,926 in economic damages and $6
million in non-economic damages; and (2) for each child, $172,000 in non-
economic damages.

Olivia moved for attorney’s fees pursuant to the proposal for settlement,
as the award to each claimant exceeded by more than twenty-five percent
the amount of the proposal for settlement as to each claimant. Dr. Duong
claimed that the proposal was ambiguous because the cover letter did not
spell out the exact terms contained in the proposal for settlement.
Further, the proposal did not give Dr. Duong the opportunity to settle the
individual claims but required him to settle all the claims together. He
argued, “[A]n offer that requires acceptance of all plaintiffs’ claims deprives
the defendant of the ability to evaluate each of the plaintiff’s claims and
determine whether to settle one or all.” He relied in part on Attorney’s Title
Insurance Fund, Inc. v. Gorka, 989 So. 2d 1210 (Fla. 2d DCA 2008), which
found a proposal from one offeror to multiple offerees invalid, where the
offer was conditioned upon it being accepted by all offerees.

The trial court granted the motion for fees, concluding that the offer
was not ambiguous. It found that there was a singular plaintiff, Olivia,
asserting claims on behalf of multiple claimants, and that the “all or
nothing” offer was valid and unambiguous. After the court entered the
order determining that the proposal was valid, Dr. Duong moved for
reconsideration based on the Florida Supreme Court’s ruling in Attorneys’
Title Insurance Fund v. Gorka, 36 So. 3d 646 (Fla. 2010). Gorka held that
a joint offer to multiple offerees, conditioned on acceptance by both
offerees, was invalid because “[t]he conditional nature of the offer divests
each party of independent control of the decision to settle, thereby
rendering the offer of judgment invalid and unenforceable.” Id. at 649.

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The trial court denied relief, however, concluding that in this case there
was but one plaintiff asserting claims on behalf of three claimants and one
offeree, instead of multiple offerees as in Gorka. The court entered final
judgment for appellees as to attorney’s fees and costs, awarding them
$557,452. Dr. Duong appeals this order.

The issue of whether an offer of settlement comports with Florida Rule
of Civil Procedure 1.442 and section 768.79, Florida Statutes, is reviewed
de novo. Nationwide Mut. Fire Ins. Co. v. Pollinger, 42 So. 3d 890, 891 (Fla.
4th DCA 2010).

Section 768.79, Florida Statutes (2002), and Florida Rule of Civil
Procedure 1.442 are strictly construed as in derogation of the common law
rule that parties are responsible for their own attorney’s fees. Campbell v.
Goldman, 959 So. 2d 223, 226 (Fla. 2007). Florida Rule of Civil Procedure
1.442 requires a proposal for settlement to, inter alia, “state with
particularity any relevant conditions” and “state the total amount of the
proposal and state with particularity all nonmonetary terms of the
proposal.” Fla. R. Civ. P. 1.442(c)(2)(C)-(D). This “requires that the
settlement proposal be sufficiently clear and definite to allow the offeree to
make an informed decision without needing clarification. If ambiguity
within the proposal could reasonably affect the offeree’s decision, the
proposal will not satisfy the particularity requirement.” State Farm Mut.
Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006).

Rule 1.442(c)(3) allows joint proposals under certain conditions: “A
proposal may be made by or to any party or parties and by or to any
combination of parties properly identified in the proposal. A joint proposal
shall state the amount and terms attributable to each party.” Subsection
(c)(3) imposes a “bright line rule.” Cano v. Hyundia Motor Am., Inc., 8 So.
3d 408, 410-11 (Fla. 4th DCA 2009). It requires that “offers of judgment
made by multiple offerors must apportion the amounts attributable to
each offeror.” Willis Shaw Exp., Inc. v. Hilyer Sod, Inc., 849 So. 2d 276,
278 (Fla. 2003). Under the statute, a plaintiff who makes an unaccepted
offer may recover such costs and fees if the plaintiff recovers an amount
at least twenty-five percent greater than the plaintiff’s offer. § 768.79(1),
Fla. Stat. (2002).

We summarily reject Dr. Duong’s contention that the cover letter
constituted a separate proposal of settlement and made the two
documents ambiguous. As the trial court found, the cover letter was not
itself a proposal for settlement but merely a notice of the enclosed
proposed settlement. Although it may be theoretically possible for the
plaintiffs to have made two separate and conflicting proposals and

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enclosed them in the same envelope, it is not substantively reasonable to
assume that the letter was intended as a separate and conflicting proposal.
See, e.g., Alamo Fin., L.P. v. Mazoff, 112 So. 3d 626, 630 (Fla. 4th DCA
2013) (finding that, while plaintiff’s claimed ambiguity was “grammatically
possible, it [was] substantively unreasonable” and was “clarified by
reference to the proposal for settlement as a whole”). The Proposal for
Settlement was clearly the operative document, and the letter is not
inconsistent with that interpretation.

Dr. Duong contends that the Proposal for Settlement is itself
ambiguous, because it refers to Olivia Ziadie in some places as the sole
plaintiff and in other places refers to “plaintiffs.” The trial court found that
Olivia constituted the single plaintiff. At the time the proposal was made,
Olivia was acting as legal guardian of Francis and in that capacity acting
for the minor children. Therefore, she had authority to make the offer and
settle all three claims. There is no ambiguity in the proposal as to which
claims were covered by the proposal (Francis and his two children), the
amount of the total proposal ($1,000,000), and the amount assigned to
each claim ($900,000 to Francis and $50,000 to each child). Cf. Arnold v.
Audiffred, 98 So. 3d 746, 749 (Fla. 1st DCA 2012) (“Here, while the first
two paragraphs stated appellee Audiffred was the sole offeror, the proposal
as a whole offered that both appellee Audiffred and appellee Kimmons
would dismiss their claims against appellant upon appellant’s acceptance.
Therefore, the proposal was a joint proposal.”).

Although the trial court may have erred in concluding that this was a
single proposal rather than a joint proposal, the court correctly concluded
that it was an appropriate “all or nothing” proposal to which Gorka did not
apply. In Gorka, the Florida Supreme Court held, “[A] joint offer or
proposal of settlement that is conditioned on the mutual acceptance of all
joint offerees . . . is invalid and unenforceable because it is conditioned
such that neither offeree can independently evaluate or settle his or her
respective claim by accepting the proposal.” 36 So. 3d at 647. The court
found, “[t]he conditional nature of the offer divests each party of
independent control of the decision to settle,” and “a party’s exposure to
potential consequences from the litigation would be dependently
interlocked with the decision of the other offerees.” Id. at 649-50.

Unlike Gorka, which involved an offer to multiple offerees conditioned
on acceptance of all the offerees, this case involves an offer to a single
offeree, conditioned on that single offeree accepting the offer as to all of the
multiple offerors. Since Gorka was issued in 2010, this court and other
district courts have upheld this type of offer. See Wolfe v. Culpepper
Constructors, Inc., 104 So. 3d 1132, 1134 (Fla. 2d DCA 2012); Rossmore v.

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Smith, 55 So. 3d 680, 681 (Fla. 5th DCA 2011); Andrews v. Frey, 66 So.
3d 376, 379 (Fla. 5th DCA 2011); Donovan Marine, Inc. v. Delmonico, 40
So. 3d 69, 71-72 (Fla. 4th DCA 2010). These decisions distinguish Gorka
on the grounds that where there is only one offeree, it is the offeree’s
decision alone to accept or reject the proposal, without the decision being
dependent on any other party. Thus, Gorka’s concern that the offer there
“divest[ed] each party [i.e., offeree] of independent control of the decision
to settle” was not implicated. 36 So. 3d at 649.

Dr. Duong contends that the foregoing decisions were wrongly decided.
Essentially, he argues that the purpose of apportionment is to allow the
offeree to “evaluate” the offer with respect to each offeror, and that such
“evaluation” is meaningless if the offeree cannot accept or decline each
offer individually. This argument overlooks the other main purpose of the
apportionment requirement, which is to allow the trial court to later
determine “whether the judgment against only one of the parties was at
least twenty-five percent more or less than the offer (depending on which
party made the offer).” Allstate Indem. Co. v. Hingson, 808 So. 2d 197, 199
(Fla. 2002); see also Twiddy v. Guttenplan, 678 So. 2d 488, 489 (Fla. 2d
DCA 1996) (“[W]e are required to reverse because the joint offer of
judgment was not specific enough to enable the trial judge to determine
that the . . . verdict against [one offeror] was at least twenty-five percent
less than the offer made on her behalf.”). The “evaluation” for the offeree
also means the importance of allowing the offeree(s) to consider whether
each offeror will later recover the amount of the offer that is apportioned
to them, which would determine the offeree(s)’ liability for attorney’s fees.

In this case, the proposal for settlement gave Dr. Duong all of the
information necessary to evaluate his exposure. Olivia Ziadie offered to
settle the multiple claims of Francis and the children for $1,000,000. The
offer broke down what part of the million dollar settlement would be paid
to each of the claimants. Thus, Dr. Duong could evaluate each claim
separately and determine both the reasonableness of the offer and the
likelihood that the claimant would obtain, as to each claim, a verdict of at
least twenty-five percent in excess of the proposal. There is no obligation
for the claimants in this case to make individual offers to a single offeree.1

1 Imposing such a requirement could mean that an offeree could settle the main
claim and leave consortium claims unsettled. It would be rare plaintiffs who
would want to hazard trying a consortium claim without the underlying injury
claim being tried at the same time.

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 Further, because it was an “all or nothing” joint proposal, if the verdict
for any of the claimants was not twenty-five percent higher than the
amount of that claim in the settlement proposal, then none of the
claimants could obtain attorney’s fees under its terms. In other words, it
was not enough that the total amount of the verdict exceed the total
amount of the offer by twenty-five percent; the individual amounts
awarded to each claimant in the verdict must also exceed the individual
amounts set forth in the proposal for settlement for that claimant by
twenty-five percent, or no attorney’s fees could be claimed based upon the
proposal for settlement. In this case, the awards to each claimant
exceeded that threshold.

For these reasons, we affirm the order awarding attorney’s fees
pursuant to the proposal for settlement.

TAYLOR and MAY, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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