Saterbo v. Markuson

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

ERIK J. SATERBO and )
STEPHEN C. SATERBO, )
)
Appellants, )
)
v. ) Case No. 2D14-2737
)
BENJAMIN D. MARKUSON, )
)
Appellee. )
)

Opinion filed September 21, 2016.

Appeal from the Circuit Court for Polk
County; Wayne M. Durden, Judge.

Mark D. Tinker and Charles W. Hall of
Banker Lopez Gassler P.A., St. Petersburg,
for Appellants; and James C. Valenti of
Valenti Campbell Trohn Tamayo & Aranda,
Lakeland, for Appellant Erik J. Saterbo.

Patrick J. McNamara, David M. Caldevilla,
Daniel J. McBreen and Eric D. Nowak of
de la Parte & Gilbert, P.A., Tampa, for
Appellee.

ORDER ON MOTION FOR REVIEW OF TRIAL COURT'S ORDER DENYING
APPELLATE ATTORNEYS' FEES

MORRIS, Judge.
 Benjamin Markuson seeks review of the trial court's order denying his

motion for appellate attorneys' fees. Because we conclude that the trial court erred by

finding that Markuson's proposal for settlement was unenforceable, we disapprove that

portion of the trial court's order and remand for entry of an order granting appellate

attorneys' fees as against Erik Saterbo and his insurer.

I. Background of the Case

Following an automobile accident between Markuson and Erik, Markuson

filed a personal injury action raising two claims: a negligence claim against Erik (as the

driver) and his father, Stephen Saterbo (as the owner), and a claim for uninsured

motorist benefits against Erik's insurer. Prior to trial, Markuson served a proposal for

settlement on both Erik and Stephen, wherein Markuson offered to settle all claims

made against both Erik and Stephen in return for a payment of $1,500,000.1 The

proposal did not include an apportionment of the amount of money due from each

defendant. The Saterbos rejected the proposal, and after a jury trial, the jury entered a

verdict in favor of Markuson, concluding that Erik's negligence was the cause of loss to

Markuson.

Despite the fact that there was only one verdict form, the trial court

entered two final judgments, one against Erik and Stephen jointly and severally for

$600,000 and a second judgment against Erik only in the amount of $2,484,074. This

resulted in a combined total award in the amount of $3,084,074. The two separate final

1Pursuant to section 768.79, Florida Statutes (2011), where a plaintiff
serves an offer of settlement that is not accepted within thirty days and the plaintiff
recovers a judgment that is at least twenty-five percent greater than the offer, the
plaintiff is entitled to recover reasonable attorneys' fees and costs incurred from the date
the offer was served.

-2-
judgments were the result of a $600,000 statutory cap on Stephen's liability pursuant to

section 324.021(9)(b)(3), Florida Statutes (2005). That section limits a car owner's

liability in suits arising out of automobile accidents. § 324.021(9)(b)(3).

The Saterbos appealed the final judgment to this court, and in the appeal,

Markuson filed a motion for appellate attorneys' fees based on his proposal for

settlement that had been made to both of the Saterbos. However, in the motion,

Markuson requested an award of appellate attorneys' fees from Erik and his insurer

only. There was no request for appellate attorneys' fees from Stephen. Ultimately, this

court affirmed the final judgment without opinion. See Saterbo v. Markuson, 177 So. 3d

618 (Fla. 2d DCA 2015) (table decision). We also granted Markuson's motion for

appellate attorneys' fees contingent upon a determination by the trial court that

Markuson was entitled to such fees.

Markuson then moved in the trial court to tax appellate attorneys' fees as

against Erik and his insurer. Markuson also sought an award of appellate costs as

against both of the Saterbos. The trial court granted Markuson's request for costs, but it

determined that he was not entitled to an award of appellate attorneys' fees as against

Erik and his insurer. The trial court reasoned that Stephen was not solely vicariously

liable for the direct claims made against Erik, and as a result, Markuson's joint proposal

for settlement failed to strictly comply with Florida Rule of Civil Procedure 1.442. The

trial court also concluded that the proposal was ambiguous and lacked particularity

because it failed to account for the fact that Stephen's liability was capped pursuant to

section 324.021(9)(b)(3). The trial court explained that because the proposal offered to

settle all claims against both of the Saterbos, including the direct claim against Erik for

-3-
which Stephen bore no responsibility, the Saterbos would have had to speculate

regarding their exposure due to the statutory cap on Stephen's liability. Thus, according

to the trial court, the proposal made it impossible for the Saterbos to make a reasonable

and informed decision whether to accept or decline the proposal. It is this order which

Markuson has asked us to review.2

II. Analysis

We conduct a de novo review of a trial court's determination of eligibility to

receive an award of attorneys' fees under section 768.79, Florida Statutes (2011), and

rule 1.442. Pratt v. Weiss, 161 So. 3d 1268, 1271 (Fla. 2015). Both section 768.79 and

rule 1.442 must be strictly construed because they are "in derogation of the common

law rule that each party is responsible for its own fees." Pratt, 161 So. 3d at 1271.

Joint proposals for settlement are expressly allowed under rule

1.442(c)(3). And while rule 1.442(c)(3) does generally require that joint proposals "state

the amount and terms attributable to each party," rule 1.442(c)(4) contains an exception

applicable to this case. Specifically, rule 1.442(c)(4) provides in relevant part that "when

a party is alleged to be solely vicariously . . . liable, whether by operation of law or by

contract, a joint proposal made by or served on such a party need not state the

apportionment or contribution as to that party."3

2Markuson has filed a separate appeal of the trial court's order denying
Markuson's motion for trial level attorneys' fees, which was also based on Markuson's
proposal for settlement. See Markuson v. Saterbo, 2D16-322. That appeal was abated
pending the resolution of this case.
3Subsection (c)(4) was added in 2010, with an effective date of January 1,
2011. See In re Amendments to Fla. Rules of Civil Procedure, 52 So. 3d 579, 581 (Fla.
2010). Prior to the amendment, rule 1.442(c) had been construed to require
apportionment even when one of the parties was simply vicariously liable. See Carey-
All Transp., Inc. v. Newby, 989 So. 2d 1201, 1204 (Fla. 2d DCA 2008).

-4-
 The Saterbos argued that because Stephen's liability was statutorily

capped at $600,000, he was not solely vicariously liable for the entire amount of

damages suffered by Markuson. Thus, they contended that the exception stated in rule

1.442(c)(4) was inapplicable and that Markuson was still required to apportion damages

between Erik and Stephen in the joint proposal. The trial court apparently agreed,

finding that because Stephen was not vicariously liable for the direct claim against Erik,

the proposal failed to appreciate the ambiguity that arose when applying the statutory

cap on Stephen's liability. But our interpretation of the rule leads us to a different result.

The focus of the exception contained in rule 1.442(c)(4) is not whether a party is liable

for the full amount of damages, but rather, it is whether the claims against the party are

direct claims or solely claims of vicarious or other forms of indirect4 liability. The

proposal here offered to settle all claims against both Erik and Stephen. Yet the fact

remains that the only claim made against Stephen was based on his status as the

owner of the vehicle, that is, one solely of vicarious liability. Consequently,

apportionment was not necessary pursuant to rule 1.442(c)(4), and Markuson's

proposal was sufficient to meet the requirements contained in the rule. See Miley v.

Nash, 171 So. 3d 145, 149-50 (Fla. 2d DCA), review denied, 192 So. 3d 40 (Fla. 2015).

The second argument made by the Saterbos—and articulated by the trial

court in its order—was that the proposal was ambiguous and lacked particularity

thereby making it impossible for the Saterbos to make an informed decision as to

whether to accept the proposal. Both the Saterbos and the trial court asserted that the

Saterbos would have been left to speculate as to their exposure due to the cap on

4The rule also provides an exception where a party is alleged to be solely
constructively, derivatively, or technically liable.

-5-
Stephen's liability. We disagree with this argument as it pertains to Erik, and for the

reasons explained herein, we do not address the argument as it pertains to Stephen.

Proposals for settlement must be sufficiently specific so that there are no

ambiguities, so that the recipient can fully evaluate the terms and conditions, and so

that the proposal can be executed without the need for judicial interpretation. State

Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006). However, the

Florida Supreme Court has also recognized that it may not be possible to eliminate all

ambiguity and, therefore, that the rule "merely requires that the settlement proposal be

sufficiently clear and definite to allow the offeree to make an informed decision without

needing clarification." Id.

Here, the proposal offered to settle all claims against Erik and Stephen,

but that fact does not make it ambiguous. Only one count was alleged as against both

of them. As to Stephen, it was based solely on his status as owner of the car, i.e., one

of vicarious liability. However, Erik was jointly and severally liable for the entire

negligence claim. It was only the amount of damages that was capped as to Stephen.

Further, the Saterbos acknowledge that once they filed their affirmative defense based

on the statutory cap, Markuson never "ma[d]e an issue that . . . the statutory cap would

not have applied in this circumstance." Thus, even in the absence of an official

determination that the cap applied (e.g., through the entry of a summary judgment on

the affirmative defense), the parties were apparently aware that section

324.021(9)(b)(3) likely applied to cap Stephen's liability.

The Saterbos argue that Erik needed further clarification "as to what would

happen if he were to accept the proposal since Stephen would not be obligated to pay

-6-
the full amount of the proposal by statute." But again, it may be "impossible to eliminate

all ambiguity," and all that is required is that a proposal is sufficiently clear and definite

so as to allow the party served an opportunity to make an informed decision. Nichols,

932 So. 2d at 1079. And, notably, rule 1.442(c)(4) provides that where a joint proposal

is made, "[a]cceptance by any party shall be without prejudice to rights of contribution or

indemnity." Thus, because Erik was liable for the entire amount of damages and

because Stephen would have had the right to seek contribution or indemnity from Erik

for any damages that Stephen obligated himself to pay over and above the statutory

cap, there is no merit to the Saterbos' argument that the cap on Stephen's liability

precluded Erik from making an informed decision. At most, Erik was liable for the entire

amount, and at the least, he was liable for the entire amount minus $600,000 that would

be owed by Stephen.

Although the trial court seemed to focus on whether both of the Saterbos

could make independent, informed decisions as to whether to accept the proposal, that

analysis appears to have flowed from the trial court's erroneous understanding of the

motion before it. The trial court's order states the motion was made against both of the

Saterbos, but that is incorrect. The motion was made solely against Erik (and his

insurer). Furthermore, while the Saterbos relied on cases that discuss the necessity for

multiple offerees to have the ability to independently evaluate and settle their respective

claims, those cases are distinguishable because they involved the prior version of rule

1.442(c), which did not permit joint proposals without apportionment. Cf. Pratt, 161 So.

3d at 1270 n.2; Attorneys' Title Ins. Fund v. Gorka, 36 So. 3d 646, 650 (Fla. 2010). But

because rule 1.442(c)(4) now permits joint proposals without apportionment where one

-7-
party is solely vicariously liable—as in this case—an analysis of whether the proposal

was sufficiently unambiguous as to Stephen is unnecessary to resolve the issue of

Markuson's entitlement to an award of appellate attorneys' fees from Erik (and his

insurer).

III. Conclusion

Under the unique facts of this case, we conclude that the trial court erred

by determining that Markuson was not entitled to an award of appellate attorneys' fees

pursuant to section 768.79 and rule 1.442(c) as against Erik and his insurer. We

therefore disapprove of the portion of the trial court's order dealing with the attorneys'

fees issue, and we remand for the trial court to determine the amount of appellate

attorneys' fees. We do not disturb the portion of the trial court's order awarding

appellate costs to Markuson.

SILBERMAN and SALARIO, JJ., Concur.

-8-